Friday, October 16, 2020

Why Didn't The Nuclear Option End Confirmation Hearing Stonewalling?

 by Michael C. Dorf

What did we learn from the confirmation hearing for soon-to-be-Justice Amy Coney Barrett? Mostly, that she's smart, knowledgeable, unflappable, and extremely disciplined at not answering questions. In that regard, she does not differ much from any SCOTUS nominee of either party in the last three decades (with the exceptions of Justices Thomas and Kavanaugh in phase two of their respective hearings, when they were respectively flappable and very flappable). All of the current Justices had the requisite professional qualifications when appointed. And although one can argue about whether Barrett took the non-answering to new levels, we should keep in mind then-Professor Elena Kagan's observations about non-answering over a quarter century ago. Writing in the University of Chicago Law Review, Kagan said of nominee Ruth Bader Ginsburg:

Justice Ginsburg's favored technique took the form of a pincer movement. When asked a specific question on a constitutional issue, Ginsburg replied . . . that an answer might forecast a vote and thus contravene the norm of judicial impartiality. Said Ginsburg: “I think when you ask me about specific cases, I have to say that I am not going to give an advisory opinion on any specific scenario, because . . . that scenario might come before me.” But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling. Again said Ginsburg: “I prefer not to . . . talk in grand terms about principles that have to be applied in concrete cases. I like to reason from the specific case.”

In this respect, if perhaps not others, Judge Barrett followed in the footsteps of the Justice whose seat she will fill. Barrett proved herself the ultimate lobster as she repeatedly executed the Ginsburg pincer movement.

And yet, we might wonder why. Following the GOP-controlled Senate's exercise of the "nuclear option" for SCOTUS nominees (which followed its exercise by the Democratic-controlled Senate for lower court and executive-branch nominees), a mere majority vote suffices to confirm a Justice. As I'll explain, that shift--which occurred for Justice Gorsuch--ought to have ended the need for evasiveness. The puzzle is why the practice persists.

Consider the circumstances of a SCOTUS nominee pre-Gorsuch. Let's say a Republican President nominates you to be confirmed by a Senate with 55 Republican Senators. You need 60 votes, and thus at least five Democrats, to break a filibuster. A Democratic nominee has the exact same challenge in reverse. True, filibusters were rarely used against Supreme Court nominees, but why tempt fate? Your best approach is not to give anybody anything to use against you. Thus, you should say as little as possible. That's how we got the pincer movement.

To be sure, it's not entirely clear why this approach ever worked. Republican Senators should have thought that Democratic Presidents selected their nominees because they expected those nominees to share the general jurisprudential approach and values of their party, and vice-versa. Some such nominees even had substantial paper trails, either from their time as scholars (if they were scholars) or as judges. It was nonetheless common for a nominee to dismiss what he or she had previously written as "merely academic" or "merely applying binding precedent," or what-have-you. Senators of the opposing party would then either naively believe these disavowals or, perhaps less naively, feel disempowered to vote no based on the written record because if something didn't happen on television it didn't happen.

Whatever the reason, in the old days, the pincer movement of non-answering made sense from the nominee's perspective as a means of avoiding alienating Senators from the opposing party. But why bother with it now that we seem to be in a period when Supreme Court Justices will be confirmed (or rejected) on party-line votes?

To be clear, in asking that question, I'm not implying that it would be sensible (or ethical) for a nominee to give a series of commitments on concrete issues. However, there would be nothing wrong with a nominee answering questions about whether some controversial precedent was rightly decided. Here's an example of how that might go:

Senator: Do you believe that Citizens United v. FEC was correctly decided?

Nominee: I do not. To my mind, the Court in that case--and frankly, in all of its campaign finance cases beginning with Buckley v Valeo--took too narrow a view of the government's interest in combating corruption. Quid pro quo corruption is insidious, of course, but Congress can legitimately conclude that money in politics is corrupting in another sense. Now having said that, I hasten to add that this is my current view. If a case were to come before the Court presenting the question whether to overrule Citizens United, I would need to consider the arguments afresh. And of course a case could have been wrongly decided as an original matter but might not warrant overruling. Perhaps it was only modestly wrong. Or perhaps there are reliance interests at stake.

Any nominee worthy of being considered for the Court will have given some thought to whether various past cases were rightly decided. Allowing them to say what that thought is would not commit them to ruling one way or another in any concrete case. It would simply be honest.

And yet, nominees haven't moved away from the pincer movement. They have embraced it even more than Justice Ginsburg did. Why?

One possibility is simply habit. The only nominee in the last 40 years to be rejected after a hearing was Judge Bork, who was by far the most forthcoming. (The two withdrawals--of Judge Douglas Ginsburg and Harriet Miers--were for other reasons.) So a nominee these days might think that it's still safest to say as little as possible.

And maybe that's right. But I want to raise a second possibility: Maybe nominees are keeping quiet about their views to serve the interest of the President who nominated them and the friendly Senators who wish to confirm them. I think this is plausible, at least for Republican nominees--and we only have data points for Republican nominees in the new era. Let me explain, chiefly by reference to abortion.

Although views on abortion are of course complex, it's fair to say that to a first-order approximation more Americans are pro-choice than pro-life but that the average pro-life voter places more weight on the issue than the average pro-choice voter does. Some Republican Senators would be happy to have a nominee simply say "I'll vote to overturn Roe v. Wade." That's how I read recent statements from Josh Hawley and Lindsey Graham. They figure that energizing their base does more good for them than being cagey does.

But there may be enough Republican Senators who would rather play a double game: making clear to the activist base that they're supporting nominees who will vote to overrule Roe while maintaining enough plausible deniability not to alienate the somewhat less intense modestly pro-choice voters. This could also be advantageous for a Republican President who wants support from religious conservatives but also from moderates. Never mind whether this all makes sense as a political strategy. The important point is that if a Republican President and some number of Republican Senators think it serves their interests, they will coach a nominee to be reticent.

And as against the advantages of a lifetime appointment, how much of a price is it to pay for the nominee to play along? Especially when the nominee can claim to be just following the "Ginsburg rule."