How Will We Know What a Supreme Court Nominee Really Thinks?by Linda Greenhouse
'I’m willing to take at face value the declaration by Senator Susan Collins of Maine that a Supreme Court nominee who showed “hostility” to Roe v. Wade, the foundational abortion-rights precedent, “would not be acceptable” to her. It’s an important statement, coming from one of the vanishingly small group of Republican senators who might break with party discipline and make their own judgment about President Trump’s soon-to-be-named nominee.
But here’s the question: If hostility to the Supreme Court’s 1973 precedent is a deal-breaker for Ms. Collins, how will she learn what the nominee really thinks? How will we the people know?
The Senate confirmation process has become so degraded that to call it a joke is way too kind. When I wrote last year that Neil Gorsuch appeared to be the least forthcoming Supreme Court nominee in modern history, that conclusion was based on my own observation rather than statistical analysis. Now two scholars of the confirmation process, Lori A. Ringhand and Paul M. Collins Jr., have proven me right in a statistics-driven law review article forthcoming in the Chicago-Kent Law Review. Going back to 1939, when Felix Frankfurter, then a Harvard law professor, became the first Supreme Court nominee to answer questions in public and under oath, the authors identified only one nominee less responsive than Justice Gorsuch. That was Justice Abe Fortas during his 1968 confirmation hearing for his elevation to chief justice, a nomination that failed.
With the future of the court — indeed, of the Constitution as we know it — now at stake, it’s urgent for the senators and the public to understand that Justice Gorsuch’s stonewalling of the Judiciary Committee was not consistent with historical practice and should not be viewed as a norm. Rather, it should be called out for what it was: a derogation of the democratic principle at the heart of Article III of the Constitution, the judiciary article that places the confirmation of life-tenured judicial nominees in the hands of the people’s representatives. Until recently, the modern confirmation process has assumed at least a modicum of substantive engagement between those representatives and the nominee.
Justice Gorsuch and his senatorial enablers based the claim that it would somehow be unethical for him to discuss his own views about the Constitution on something he and others referred to as the “Ginsburg rule.” Supposedly, during her 1993 confirmation hearing, then-Judge Ruth Bader Ginsburg refused to give meaningful answers to the senators’ questions. That is a myth. As the current documentary film “RBG” reminds us, she fully embraced the constitutional right to abortion. She was confirmed by a vote of 96 to 3.
Not only is there no “Ginsburg rule,” but the two Republican nominees who came after her, John G. Roberts Jr. and Samuel A. Alito, were both more forthcoming than Justice Gorsuch. While both fenced with the senators about Roe v. Wade and refused to be pinned down, they each accepted the holding in Griswold v. Connecticut, the crucial pre-Roe decision recognizing a right to privacy that gave married couples the constitutional right to contraception. “I feel comfortable commenting on Griswold and the result in Griswold,” then-Judge Roberts told Senator Herb Kohl, a Wisconsin Democrat, during his 2005 hearing, “because that does not appear to me to be an area that is going to come before the court again.” (Let’s hope that’s still the case.)
Back in 1987, Anthony M. Kennedy also endorsed Griswold; asked by Senator Joe Biden, the Judiciary Committee chairman, “Is there a marital right to privacy protected by the Constitution?” then-Judge Kennedy answered: “Yes, sir.” He thereby distanced himself unmistakably from Robert H. Bork, the defeated nominee whose intended place on the Supreme Court he would go on to occupy for 30 years. At his own hearing, Judge Bork had spoken derisively about Griswold and made clear that he regarded the decision as illegitimate judicial overreach. Yet to his credit, he spoke about it. Justice Gorsuch had only this to say, in response to questions from Senator Dick Blumenthal of Connecticut: “To say I agree or I disagree with a precedent of the United States Supreme Court, as a judge, that’s an act of hubris that to me just doesn’t feel like a judicial function.”
He would not even do what all other recent nominees have done and embrace the court’s 1954 desegregation decision, Brown v. Board of Education. In fact, it seems to be part of the marching orders for Trump administration judicial nominees to refuse to say that Brown was correctly decided. Typical was Wendy Vitter, nominated to a Federal District Court seat in Louisiana, who during her confirmation hearing this spring answered Senator Blumenthal’s question about Brown by saying that “I think I get into a difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with.” (Her nomination remains pending.)'>>>
https://www.nytimes.com/2018/07/05/opinion/supreme-court-nominee-roe-wade.html?
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