Monday, April 17, 2017

To Fix the Confirmation Process We Need to Face the Truth About SCOTUS

By Eric Segall

As the dust settles over the bitterly partisan confirmation battles over Judge Garland and Justice Gorsuch, there is a large consensus that the Supreme Court is a damaged if not broken institution. Liberal commentators have been speculating, for the first time in 85 years, about the possibility of a Court packing plan the next time the Democrats hold both the Congress and the Presidency. The Editorial Board of the New York Times recently worried that the politics surrounding who nominates and confirms future Justices could “shake the court system and American jurisprudence to its core.” Even Chief Justice John Roberts lamented this week that that it will be “very difficult … for a member of the public to look at what goes on in confirmation hearings these days …and not think that the person who comes out of that process must …share that partisan view of public issues and public life.”

In light of Justice Gorsuch’s refusal to answer any meaningful questions at his confirmation hearing, as well as the GOP’s stonewalling of Judge Garland, it is tempting for Court watchers, as well as the Chief Justice himself, to blame the confirmation process for the current despair over the Court. But that leap is a serious mistake. The main reason the confirmation process is broken is that the way the public and the Senate view (or at least talk about) the Supreme Court is at odds with reality. Before we can fix the confirmation process, we need to have a more honest conversation about the Court itself.

The Supreme Court has been a largely political institution since 1803. I do not mean that the Justices make decisions just like other politicians. They do not because that have more independence than elected officials who must try and please the voters by often making false promises about what they intend to accomplish in the future or by painting a distorted picture about what they decided in the past. The Justices don't, and shouldn't, have that pressure.

By “political”, I mean that the Justices resolve cases, both important front-page controversies and less publicized back-page ones, through a combination of personal preferences, life experiences, partisan politics, and values writ large, where traditional legal norms play only a marginal role in generating (as opposed to explaining) their decisions.

The fiction that prevents us from having a meaningful confirmation process is the repeated falsity that law plays a primary role in the Court’s decisions. It is that myth that allows Justice Gorsuch, and all the other recent nominees to the Court, to say that they should not reveal their preferences when being vetted for the highest Court in the land. That pattern has turned the process into a “charade” as Justice Kagan once wrote or “Kabuki Theater” as Joe Biden once said.

The Justices are not like other judges (even other life-tenured judges) who apply legal rules against the backdrop of an appellate or reviewing court. The Justices are free to and actually do change those rules and overturn prior decisions when they feel it is important enough to do so. That freedom, as well as the fact that the Justices handpick their cases, which are among the hardest our country has to offer, explain why the exercise of personal discretion rather than the application of formal legal materials best explains the Justices’ responsibilities.

If our politicians could openly speak these truths about the Court, and if the Justices honestly and transparently explained that their personal preferences play a major role in deciding constitutional law cases, the public’s and the media’s dialogue about the Court would be greatly improved. We need Supreme Court Justices of great character, intellect, and abilities precisely because the job comes with so much discretion and independence.

If the public accepted that the Justices are free to decide cases as they think best largely unencumbered by prior law, we could have a more realistic conversation about proposals to improve the confirmation process that would better gauge the quality of the nominees and their personal and political preferences. For example, some states and European countries have judicial qualification committees that do a much better job vetting judges than the hopelessly partisan Senate Judiciary Committee. Moreover, given the role that personal values play in the Court’s decisions, the Senate should require nominees to answer real questions about their values and their political (and legal) perspectives if they want to ascend to the bench.

All of this is unlikely, maybe even impossible, as long as we continue to adhere to the myths that nominees espouse both in their confirmation process and then, once affirmed, in their judicial decisions. Their tired and inaccurate clichés that “the law made me do it,” or “I will do my best to follow the law,” are shallow statements that should be removed from public life for Supreme Court Justices. Our current Chief Justice, who claimed during his confirmation hearing that the Justices are just like umpires who call balls and strikes but don't decide who wins the games, has written legal decisions imposing his personal views on voting rights, affirmative action, campaign finance reform and federalism (among many other issues) that are far removed from constitutional text and history but accurately reflect his personal values. It is unconscionable that he hid (and was allowed to hide) those values when he testified in front of the Senate.

Some scholars question whether the public would retain faith in the Justices if we openly discussed how much discretion they possess to rule how they want. But our collective belief in checks and balances and the separation of powers justifies a third branch of government with veto power over state and federal legislation even if those decisions sound more in discretion than law. In any event, that is how the Supreme Court has operated for hundreds of years. Until we truly accept that the Supreme Court of the United States at its core is a political not legal institution, the confirmation process will continue to be the “charade” Justice Kagan labelled it over twenty years ago.


David Ricardo said...

The body politic is smarter and more aware than Mr. Segall would give them credit for. They know that the Supreme Court is a political rather than judicial body. They understand that the Justices vote their politics and not the letter or the spirit of the law. They know that electing a Republican Presidential candidate in 2016 meant that he would appoint a conservative Republican to the Court and that the Republican Senate will rubber stamp the appointment. How did they know this? He said it all during the campaign. There is not and was not any failure to inform the public of the political nature of the Court.

One cannot fix the confirmation process because it is simply a Constitutional procedure and not a serious effort to determine if a nominee is qualified. Both parties abuse the process, Republicans far more than Democrats because Republicans want to use the law to impose their beliefs on the public.

Joe said...

I think the first comment is on some level correct, but there are myths, even when deep down we know they are myths. So, and I think they know this on some level, we have the "liberals shouldn't be so upset" myth.

Just read a piece like this from some self-proclaimed liberal, who is trying to either make me or Gorsuch's strongly conservative supporters look pretty stupid. Either that, or this is a gigantic moving the goalposts thing where the fact Gorsuch won't simply be Sen. Mitch McConnell up there is supposed to be all the reassurance we need.

I also think many people simply don't pay much attention to these things and this helps them convince themselves that it's not too bad. They might blandly state that they realize some justices (and court of appeals judges, who often have great power, such as those in the D.C. Circuit who in effect were delegated deciding questions of enemy combatants) lean a certain way. But, it doesn't excite them too much.

Finally, part of it is a basic feeling the procedures are what they are, and they cannot be changed. This is a bit exaggerated, of course, since constitutionally a justice can be picked and confirmed by some sort of independent panel with the President and Senate in effect rubber stamps. It is partially a matter of actually putting in people govern better than those there now.

And, yes, some constitutional changes can be imagined. But, breaking the filibuster didn't require a formal amendment. I supported it in part since it helped bring some realism to the proceedings.

Shag from Brookline said...

This paragraph of Eric's post:

"If our politicians could openly speak these truths about the Court, and if the Justices honestly and transparently explained that their personal preferences play a major role in deciding constitutional law cases, the public’s and the media’s dialogue about the Court would be greatly improved. We need Supreme Court Justices of great character, intellect, and abilities precisely because the job comes with so much discretion and independence."

may be correct regarding the last sentence. But I have serious doubts that politicians speaking openly and Justices/nominees speaking honestly and transparently, etc, would greatly improve the Court and the public's view of the Court.

I share David's points.

el roam said...

Thanks for that interesting post , I do agree that professional appointments , and not political , are far greater better , and would enhance public trust . Yet , the respectable author of the post , has ignored one of the main issues :

Divergence between state law, and federalism law. Looking from the outside , the system looks amazingly absurd . The constitution , is too anarchistic , and doesn't fit modern times and US states perception :
How can it be , that second amendment right , to carry a gun or weapon , would be a federal or constitutional issue , while , homosexual rights , would be solely almost , a state issue ? How can it be , that, death penalty would be a state issue or law , and not federal issue , while , second amendment would be federal issue ? Doesn't make sense !! The US needs , to renovate its constitution , making it more federal one , and create more unity or conformity in constitutional issues . Then , much less importance , would be attributed to the personal view of one judge in the supreme court .

Just to quote, from an amazing verdict of the circuit court (district of Columbia , Appeal from the United States District Court for the District of Columbia , shelly praker v. district of Columbia ) here :

" In the Second Amendment debate, there are two camps. On one side are the collective right theorists who argue that the Amendment protects only a right of the various state governments to preserve and arm their militias .So understood, the right amounts to an expression of militant federalism, prohibiting the federal government from denuding the states of their armed fighting forces. On the other side of the debate are those who argue that the Second Amendment protects a right of individuals to possess arms for private use . "

End of quotation :

In the legal arguments presented , judge went far back , to the 19th century , and " Militias " issues . This is an absurd , while :

States differ in same sex marriage , death penalty , by nature , much more related to constitutional issues , over , bearing guns , and Militias in the 19th .
To the ruling :$file/04-7041a.pdf


Paul Scott said...

I am in favour of packing, but believe the Dems need to do so with potentially more strength of will than they have.

They need to openly declare Gorsuch illegitimate, but recognize as legitimate any other Trump appointment.

Once with sufficient power, they need to add two seats and only two seats.

Joe said...

The SCOTUSBlog summary of the first oral argument Gorsuch was involved in noted he was concerned with the actual text of a complicated statute (Alito suggested the person who wrote it likes to pull wings off flies) and tossed out a suggestion (who knows) he was open to a major change in the law in the technical area in question(per Kagan) apparently to stop "making stuff up." Just balls and strikes, again, right?

Meanwhile, another account over at Buzzfeed suggested the justices were in a light-hearted mood, happy to be at full staff. Joking and such with Roberts wishing Gorsuch a long healthy stay. Ha ha. Maybe it's just me, but just know at least one of the justices on the left wasn't that happy about the whole thing.

Anyway, I agree with Paul Scott that there is logic to singling out Gorsuch as illegitimate [this is partially why I supported the filibuster now], though Democrats could of course as a whole (with the usual exceptions) strongly oppose a bad choice. "Illegitimate" is a certain level of bad here.

As to adding two seats, one thing there (other than I won't hold my breath) is that the result would be an even number of justices. I'm open to that being a decent idea though wasn't convinced regarding all aspects of Prof. Segall's proposal.

Shag from Brookline said...

Adam Liptak's "Sidebar" column in today's NYTimes takes up the subject of Justices interrupting other Justices during oral argument based upon a study by political scientists that includes addressing gender and conservative/liberal, with Liptak suggesting Justice Gorsuch may not be so quiet on the Court. The discussion on gender interruptions was most telling.

Joe's report suggests that Gorsuch was not chilled out because of the Court's unanimous decision on the freezing truck driver case.

Shag from Brookline said...

With respect to the Second Amendment, Paul Finkelman's "The Living Constitution and the Second amendment: Poor History, False Originalism, and a Very Confused Court," 37 Cardozo Law Review 623 (2015) dissects both Heller and McDonald in great detail rather than in anecdotal fashion. It's available at:

Shag from Brookline said...

Over at the VC Will Baude posts "Can we handle 'the truth about SCOTUS?'" picking up on Eric's point, with which Will disagrees. Can we expect more piling on by originalists? This thread may last a little longer than usual. Will seems skeptical that the Court is political at times as claimed by Eric.

سيكو said...

من المعروف ان نظافة المنازل من بين اهم الخدمات الضرورية في التنظيف والترقية بمنازلنا الى مصاف المنازل العصرية والتي عرفت تنظيفا عصريا من شانه ان يوفر لساكنته ظروفا حياتية راقية ولابد من توفر هيئة تختص في المجال مع تقديم ضمانات متكاملة من شانه ان تجعل الافراد يضمنون نجاح خدمة التنظيف ولا حاجة للمزيد من ضياع الاموال عبر طلبات خدمة نظافة المنازل التي لا تلبي حاجياتهم ولا تتماشى مع رغباتهم لأن العديد من شركات تنظيف المنازل تسعى فقط الى عرض خدماتها عبر طرق ترويجية فحسب من اجل كسب المال فقط دون مراعاة الوازع الاخلاقي والضمير المهني الذي يحتم على مدراء مثل هاته الشركات ان يسعوا خلف ارضاء العملاء ليس اكثر من هذا عبر اتقان تنظيف المنازل شركة تنظيف خزانات بالرياض
شركة تنظيف مجالس بالرياض
شركة نظافة عامة بالرياض
شركة نقل عفش بالرياض
شركة مكافحة حشرات بالرياض
شركة تنظيف شقق بالرياض
شركة تنظيف منازل بالرياض
شركة رش مبيد بالرياض

Asher Steinberg said...

Shag, there was no unanimous decision or decision from the Court on the trucker case. You may be thinking of a decision in which the Court unanimously reversed a Tenth Circuit decision, not written by Gorsuch, that applied an interpretation of the IDEA and followed a decision Gorsuch wrote adopting that interpretation, though it has been argued, pretty credibly, that Gorsuch was just applying a standard adopted in prior Tenth Circuit precedent and not really breaking any new ground.

Shag from Brookline said...

Asher, thanks for your correction. I was confusing Judge Gorsuch's dissent in a case that Eric Posner at his blog posted on with the title "Gorsuch's Bizarre 'Frozen Trucker' Opinion." I'm now curious as to Justice Alito's comment during the oral argument yesterday and whether he had it [frozen trucker] in mind with regard to Justice Gorsuch's comments earlier in oral argument regarding construing statutes, and if so, whether Justice Gorsuch felt a chill.

That part of my comment was an effort at a feeble satirical throwaway. But I had hoped Liptak's Sidebar column might have drawn some comments from the usual suspects.

Asher Steinberg said...

No, I should think there's no way in the world Alito had that in mind; there's no real connection. It is a bad dissent though.