Supreme Court confirmation hearings have perfected the art of the dodge

Jack Doppelt 

 July 20, 2005

[A version of this article was published as Say It Loud in The American Prospect]

For a process that has been with us for more than 120 nominees and that predated the rejection of George Washington's appointee John Rutledge in 1795, the Senate confirmation hearings of Supreme Court justice candidates are surprisingly open to interpretation and spin. 

Even before President George W. Bush announces a nominee to succeed retiring Justice Sandra Day O'Connor, the Bush administration and right-wing activists are priming the pump to co-opt public opinion so that the Senate's 45 non-Republicans either acquiesce to consenting to whomever Bush nominates or appear reckless and partisan as they shoot blanks at the candidate. The Senate is not without recourse; moreover, the public is entitled to better than a rubber advice-and-consent stamp. 

Bush has signaled in general terms the type of nominee he's likely to pick. As he said in an October 2000 debate with former Vice President Al Gore, he disfavors liberal, activist judges, and he "believes in strict constructionists." Since then, he hasn't deviated from that line -- but also hasn't said much more, except to indicate how much he admires Justices Antonin Scalia and Clarence Thomas. 

Interestingly, Scalia has had something to say about the usefulness of packed, under-explored phrases like "strict construction". In 2002's Republican Party of Minnesota v. White, the Court addressed the constitutionality of a provision in the Minnesota Code of Judicial Conduct that prohibited candidates for elective judicial office from announcing their views on disputed legal or political issues. The Court divided along ideological lines with Scalia writing the majority opinion that struck down the provision as both unconstitutionally limiting on speech and foolhardy in its attempt to ensure an open-minded judiciary. 

In his opinion, Scalia recalled an exchange during oral argument in which Minnesota's attorney tried to defend the provision by saying that a candidate is free to assert that he's a "strict constructionist," which, he wrote, "has little meaningful content" unless it is applied to a particular issue of construction likely to come before a court. That, however, is something a candidate is not supposed to address because he or she might appear to prejudge cases. Yet, Scalia mused, "without such application to real-life issues, all candidates can claim to be 'strict constructionists' with equal (and unhelpful) plausibility." 

Was Scalia arguing for more robust exchanges in which judicial candidates lay out their ideological beliefs more fully? Another part of the opinion leaves little doubt that that's exactly what he was advocating. He gave a more concrete example: the issue of same-sex marriages. He noted that, according to Minnesota's provision, a judicial candidate could not say, "I think it is constitutional for the legislature to prohibit same-sex marriage." He found that preposterous because he could say the very same thing in writings, classes, or opinions up until the very day he's a candidate -- and say it repeatedly after he becomes a judge -- yet somehow it was considered to be a mark of open-mindedness to say it's off limits during the very part of the process when the public can judge what is on his mind. 

Of course, it wasn't just Scalia who felt this way. He was writing for the majority -- for Anthony Kennedy, O'Connor, William Rehnquist, and Thomas. 

The less conservative wing of the Court took him on -- and on that very point. Justice Ruth Bader Ginsburg argued that there is no difference between a judicial candidate saying he thinks it's constitutional for the legislature to prohibit same-sex marriages and saying, "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages." Both statements, she wrote, "contemplate a quid pro quo between candidate and voter." 

Not surprising, perhaps, that Ginsburg would have such an opinion. She was confirmed 97-3 by the Senate in 1993 after hearings in which she avoided answering pointed questions on capital punishment and discrimination against gays. The Bush administration will try to get mileage out of the precedent that President Bill Clinton's appointees -- Ginsburg and Stephen Breyer -- were both confirmed overwhelmingly despite declining to discuss ideologically divisive legal issues. The administration won't say that they were confirmed in large part because Clinton vetted them first with Senator Orrin Hatch (then the ranking Republican on the Senate Judiciary Committee), who advised Clinton before the nominations to forego bringing forward Bruce Babbitt, who was perceived to be less mainstream. That is not a courtesy we are likely to see given by Bush to ranking Democrat Patrick Leahy, who has already gone on record as vowing to press nominees to explain their views on ideological issues and, if he's not satisfied with the answers, to vote against confirmation. 

The powerful lessons for Democrats and for the public going into the hearings are those from 1987, when Robert Bork's nomination by President Ronald Reagan was soundly rejected by a vote of 58-42 and followed by Kennedy's unanimous confirmation. Six Republicans voted against Bork (including Arlen Specter, who is now chair of the Senate Judiciary Committee). 

Specter said at the time that Bork was rejected because his views were "perhaps the most extreme of any nominee who had ever been considered by the Senate," and the hearings established the important precedent of the Senate's right to reject where there is substantial doubt that the nominee's philosophy comes within the broad continuum of U.S. constitutional jurisprudence." 

Right-wing advocates recall the Bork hearings as a lynching. Bork said then that his rejection was "part of a larger war for control of our national culture." Now he's saying that Kennedy typifies a Court that is "enacting a political agenda" as he warns Bush against picking a candidate like Kennedy, and unlike him, who would "tend to drift to the left in response to elite opinion." 

It is apparent that Bush does not want to end up with another Justice Kennedy. It is not clear whether he wants a justice whose views are aligned with Scalia and Thomas or with Robert Bork. That is what the hearings need to tease out. When Bork faced questions during his hearing that led him to declare with smug defiance that he could not divine a right to privacy in the Constitution, the public sensed both the extremism and the lack of judicial temperament. The Senate became emboldened. 

Justice William Brennan is often quoted for his invocation in New York Times v. Sullivan that "debate on public issues should be uninhibited, robust, and wide-open." Seldom quoted is the tail end of the quote that warns that it "may well include vehement, caustic, and sometimes unpleasantly sharp attacks."

That's what lies ahead for Bush's nominee -- and a good but messy thing, too. 

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Supreme Court confirmation hearings shouldn't be a pass for Judge David Souter or anyone else

 Jack C. Doppelt

Sept. 20, 1990

[A version of this op-ed was published as "Probing Judge Souter"in the Chicago Tribune on Aug. 30,  1990]

What should we expect to find out about Judge David Souter before the Senate votes on whether he should be confirmed as the next U.S. Supreme Court justice? Not much, if we are to listen to the many commentators who suggest that we be satisfied with a limited inquiry into Judge Souter's intellectual qualifications and whether he intends to interpret the Constitution strictly or act as a judicial activist, legislating from the bench. 

One commentator after another has bemoaned the politicization of the Senate confirmation process that raked Judge Robert Bork over the coals, as if the lesson to be learned from the Bork hearings is that we should accept a President's nominee blindly. To demand more, the argument goes, would be to expose a nominee to the single-minded agendas of the far right or left at the expense of judicial integrity and impartiality toward the cases and issues the Court is likely to be faced with in the future. 

That need not be the case and the public should demand to know more about Judge Souter's ideological leanings and judicial philosophy. 

When William Brennan appeared before the Senate Judiciary Committee as President Eisenhower's nominee in February of 1957, there were political agendas as there are today. Senator Joseph McCarthy, who was not even a member of the committee, was granted the floor to ask Brennan a series of questions relating to Brennan's views on communism. Brennan had made a speech a few years earlier that characterized the nation as becoming "ashamed of our toleration of the barbarism" which marked the congressional hearings into communist activities. In his waning days in the Senate, McCarthy hoped to depict Brennan as soft on communism. 

Brennan ducked a number of McCarthy's questions, such as whether he believed communism was merely a political party or a conspiracy to overthrow the government. Brennan reminded the committee, as nominees have done before and since, that it would be inappropriate for a nominee to answer questions about cases or issues pending before the Court. The Court had on its docket cases in which the definition of communism was integral to the issue of membership in the Communist Party. 

Before he was done, Brennan had conveyed enough that McCarthy had a statement read into the record that Brennan "harbors an underlying hostility to congressional attempts to investigate and expose the Communist conspiracy." Brennan would be confirmed without a roll call vote. 

Fourteen years later when William Rehnquist was before the Judiciary Committee as President Nixon's nominee, the cat and mouse game between probing committee and savvy nominee had merely shifted ideological focus. Liberal Senators Edward Kennedy, Birch Bayh and Philip Hart inquired into Rehnquist's positions on domestic surveillance, segregation and limitations on the President's war powers. They formulated questions to prod the nominee into answering without having to address cases or fact situations that might be before the Court. 

They quoted from prior cases, including the Pentagon Papers case decided earlier that year, and got Rehnquist to answer whether he agreed or disagreed with the Court's language. Rehnquist went so far as to say he had a constitutional problem with some of the anti-war amendments pending before Congress the year before. He stopped short of answering how he felt about particular constitutional amendments. 

Rehnquist discussed his personal views on segregation. He defended views he had expressed four years earlier that in the context of busing to achieve integration, we should be "no more dedicated to an integrated society than we are to a segregated society," but should be dedicated to a society that accords freedom of choice in such matters. While declining to comment on specific cases of de jure segregation pending before the Court, his answers would prove to be quite telling about the inclinations he would take into the Court's future cases and issues. 

As we approach Judge Souter's confirmation hearing, we as a nation know less about him than we did about either Brennan or Rehnquist. We are not likely to learn more through news conferences or briefings so we are dependent on the Senate's judiciary members to elicit information from a nominee whose views need to be articulated before they come to rest as the law of the land. 

The Senators and their staffs ought to approach their task with a reinforced commitment to get Judge Souter's views on the record. Whether the issues are abortion, affirmative action, separation of church and state, or the exclusionary rule, we should not accept a pat response that any answer would be inappropriate because the question touches on issues that might be before the Court. 

If Judge Souter is not forthcoming in his answers, we should not assume ethics and judicial propriety dictate such forbearance. Earlier this month, Justice John Paul Stevens spoke out on the flag burning case, saying the Court should not have heard the case, and on death penalty cases, saying that states should provide funding for both the prosecution and the defense. If ethics and judicial propriety do not prohibit a sitting justice from commenting on issues that the Court may have to address again in the future, then there is no reason we should not seek such candor from a nominee. 

Many nominees, before their confirmations, have taken positions in writing and speeches on cases and issues that have been decided by the Court. Questions that ask Judge Souter for his opinions on recent Court decisions should be fair game. Those opinions may not accurately predict how Judge Souter will decide cases once on the Court. 

That is as it should be. We should not know how he will rule on future cases. We should know, through the "penumbras and emanations" of his answers, what views, attitudes and judicial philosophy he will take into those cases. 

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