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.