Wednesday, April 18, 2018

Why Do Judicial Nominees Hide Their Views About Abortion?

by Michael Dorf

In my latest Verdict column I discuss the Senate Judiciary Committee hearing last week on the nomination of Wendy Vitter for a federal district court judgeship. Vitter refused to answer the question whether she thought Brown v. Board of Education was rightly decided. I explain that this is probably not a sign that Vitter is a closet segregationist but instead a rational strategy for avoiding having to say whether she thinks that Roe v. Wade was rightly decided.

Skeptical readers might wonder why Vitter feels the need to avoid expressing a view about Roe, in light of two facts: (1) Given her past statements about abortion, it's obvious that she thinks Roe was wrongly decided and would undoubtedly construe abortion rights as narrowly as possible in any case involving them, even if she would not expressly defy SCOTUS precedent; and (2) Republican Senators, who hold a majority of the chamber, would be happy to confirm a nominee with Vitter's views about abortion. For them, this is a plus rather than a minus. Any pro-choice Senator who would vote against a nominee who expressly said that she thinks Roe wrongly decided but would vote to confirm Vitter based on Vitter's reticence is, not to put too fine a point on it, a naive fool.

Nonetheless, reticence on abortion continues to be a characteristic feature of judicial confirmation hearings, regardless of whether the nominee is a pro-life Republican or a pro-choice Democrat. Why?

I cannot honestly say that I know why, but I would chalk it up to some combination of two factors.

First, there are still a few Senators who go against their respective parties' mainstream with respect to abortion. Lisa Murkowski and Susan Collins are ostensibly pro-choice Republicans, while Joe Manchin and Robert Casey are ostensibly pro-life Democrats. Those positions tend to show up when abortion or abortion-related issues are directly at issue in a vote, but Senators virtually never vote against judicial nominees of their own party's president on the basis of ideological opposition alone.

Thus, an ostensibly pro-choice Republican Senator will vote for the confirmation of a Republican nominee who is likely opposed to abortion rights, and an ostensibly pro-life Democratic Senator will vote for the confirmation of a Democratic nominee who is likely in favor of abortion rights -- but such votes are easier to sell to the public in their respective states if the nominee does not expressly say what he or she thinks about abortion. Another way to put that point is that while Senators may not be naive fools, their constituents frequently are. Or perhaps more charitably, their constituents don't pay nearly as much attention.

Second, it appears that Senators place excessive weight on how a nominee performs during the confirmation process. If so, this is a particular exemplar of a fairly widespread phenomenon. Prospective employers tend to overvalue in-person evaluations--typically interviews--relative to the candidate's prior record. There are reasons for this, of course. Prior employers may not be fully truthful in providing recommendations; the paper record can be fudged; etc. But mostly it seems that people overestimate how good they are at evaluating others' skills and qualifications.

Senators making confirmation judgments for themselves will overvalue the nominee's "performance," and that overvaluation will be reinforced by the fact that their constituents, if they are paying attention at all, will typically be paying attention to the confirmation performance rather than the paper record. Accordingly, even if a nominee has a record that strongly suggests a particular view about abortion or any other issue about which a Senator or her constituents care, not taking a position on that issue during the confirmation process itself will tend to make the nominee look more acceptable to people on the other side of the issue.

Hence, if I am right that Vitter chose to keep mum about Brown because she thought it would better enable her to keep mum about Roe, then her non-answer on Brown was at least arguably part of a shrewd confirmation strategy.


Joe said...

I don't know how much senators rely on confirmation nomination hearings (they clearly matter to some extent, for good or ill, as part of the process) but the problem here is that Brown is so accepted that it comes off as a net negative. Many people, to me unfairly, made out as if she was a secret racist. The senator probably crafted the question as a gotcha. As was noted, Gorsuch was asked something similar & avoided such trap at the end of the day.

One reply cited RBG as an example of someone who didn't answer questions about ongoing disputes. I saw such a "Ginsburg rule" cited but the game there is to pick your spots. I saw this in a clip shown on Monday's "Landmark Cases" episode on CSPAN where she commented on free speech cases. Not stating an opinion on Brown is therefore a tad extreme.

Net, since senators know these people's positions (the nominee here had a stronger than usual pro-life record than some), seems best simply to be honest about certain key cases, especially if they involve matters they personally were involved with as a public figure. Yes, as you see, I have a record supporting "x," but as a judge, I will of course follow precedent. Does this mean along the margins, my experiences might influence my judgement in some fashion? I guess so. That seems to be the judgment of people who examined the issue for over a hundred years. Prof. Dorf, e.g., noted this in a column recently.

Someone with as strong as a pro-life position as her at least probably won't benefit too much by such a negatively received dodge as compared to simply being upfront. I think in some marginal cases at least, this is likely to help them. If nothing else, net, probably won't hurt while making their side look most honest.

Joe said...

ETA: Usual disclaimer that this is a general comment and would apply to liberal nominees in various cases.

Shag from Brookline said...

I would hope that Eric might address the nominee's failure to address that Brown was rightly decided, as originalism may be an issue with Brown, as well as with Roe. Brown was challenged for many years, too many years. Finally a point was reached when few directly challenged the legitimacy of Brown. Some originalists accepted Brown on non-originalism grounds. Some originalists took the position that Brown comported with originalism. Post-Obama, perhaps more than a few are prepared to directly challenge Brown. I don't know if the nominee is an originalist. Perhaps the hopes of conservatives for more appointments by Trump to SCOTUS of originalists may change Roe and even Brown.

Joe said...

Eugene Volokh, who actually supports the "liberal" position here, found Prof. Segall's Gorsuch musings a tad offensive.

Shag from Brookline said...

The Genie in charge of the VC does not mention Prof. Segall by name in the VC post that Joe provides a link to. Rather Genie precedes quotes from Prof. Segall's post as follows:

"From a post (not by Michael Dorf) on Dorf on Law:"

Nor is Prof. Segall mentioned in Genie's comments following such quotes. I wonder why? [There are several posters at Dorf on Law in addition to Profs. Dorf and Segall.] Unlike Joe, I think Genie was more than a tad offensive on Prof. Segall's musings. Does Genie think Prof. Segall was really trying to manipulate Justice Gorsuch?. Is manipulation of Justices part of the VC model?

Joe said...

First comment:

"Eric Segall|4.19.18 @ 8:51AM|#

Eugene, I am a bit surprised you think I think I have the ability to manipulate Gorsuch (I wish). I was making two points: 1) the Justices are people too with mixed motivations like the rest of us; and 2) It wouldn't surprise me if Gorsuch joins the liberals in Janus. Why did this bother you so much? You think I think Gorsuch will actually read this? You think when Justices have enormous discretion they just do what they think the law requires? I said Gorsuch wouldn't write an opinion he didn't believe but that there are many factors at work in Janus. That's all."