What the Senate Should Ask Judge Gorsuch

When Judge Neil Gorsuch faces the Senate Judiciary Committee Monday, will we see a series of crisp, clear exchanges on the nature of the Constitution, the role of precedent, the limits of Presidential power? Or will see what one legal scholar called “a vapid and hollow charade, in which repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis”?

If the last thirty years are any guide, put your money on the second option.

Ever since Judge Robert Bork offered the Senate an honest account of his judicial philosophy in 1987 and watched it torpedo his chances, nominees have steadfastly refused to engage on controversial legal issues—insisting that they must avoid pre-judging cases by remaining silent about any significant issue that might conceivably come before the Court. Those nominees include Elena Kagan, the legal scholar who authored that 1995 jab at the process, and who notably lost her enthusiasm for revealing questions and answers when she was the one being questioned as a nominee.

Modern nominees decline as well to offer assessments of virtually any past Supreme Court decision, beyond embracing Brown vs. Board of Education—the school desegregation decision of 1954—and taking a swipe at the Dred Scott decision of 1854 that declared slavery the law of the land. (Justices Anton Scalia and William Rehnquist hold the record for such discretion: During their 1987 confirmation hearings, both refused to commit even to Marbury vs. Madison, the 1803 decision that established the Court’s power to strike down laws as unconstitutional.)

The result has been a series of elaborate, ritualistic exercises designed chiefly to make political points in front of the TV cameras. (Many of the senators will make eight-minute statements followed by a question mark.) Democrats will ask Gorsuch is he believes there is a right of privacy in the Constitution. He will say yes. Then they will ask if that includes a woman’s right to terminate a pregnancy. He will say that issue might well come before the Court, and will decline to answer. Or, like John Roberts, he might acknowledge that Roe v. Wade established a precedent, but will not say if and how that precedent might be overruled. They will ask if the Constitution limits the President’s power, wrapping such questions with denunciations of President Trump’s travel bans, and point to memos he wrote while in the Bush Administration, embracing a robust view of that power. He, and the Republicans on the panel, will note that he was serving as an advocate back then, and no conclusion can be fairly drawn about how he might rule as a Supreme Court justice.
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