How Can Lawmakers Figure Out What Supreme Court Nominees Really Think About An Issue?

Jul 11, 2018
Originally published on July 11, 2018 8:51 pm
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AILSA CHANG, HOST:

There's been a lot of discussion about what Supreme Court nominee Brett Kavanaugh actually thinks about Roe v. Wade. No doubt senators will try to put that question, and many others, to him during his confirmation hearing as they have to other nominees in the past.

(SOUNDBITE OF MONTAGE)

CHUCK GRASSLEY: Can you tell me whether Roe was decided correctly?

DIANNE FEINSTEIN: Do you disagree with any of the majority opinions...

GRASSLEY: Do you believe that marriage is a question reserved for states to decide?

AMY KLOBUCHAR: Do you agree with the point that Justice Marshall made in McCulloch?

CHANG: But it's quite likely that Kavanaugh will take a cue from those who came before him.

(SOUNDBITE OF MONTAGE)

ELENA KAGAN: I want to be extremely careful about this question.

ANTONIN SCALIA: I don't want to be in the position of saying yes to any case that I would not overrule.

NEIL GORSUCH: I think that's the beginning of the end.

SONIA SOTOMAYOR: I can't answer your hypothetical.

JOHN ROBERTS: I'm reluctant to get into this.

CHANG: Using a confirmation hearing to divine what a Supreme Court nominee really thinks has its limits, but some longtime observers of the confirmation process say there are some questions that can and should be answered. Lori Ringhand is a professor at the University of Georgia School of Law, and she's co-authored a book tracking how responsive Supreme Court nominees have been during the confirmation process. Welcome.

LORI RINGHAND: Hi. Thank you for having me.

CHANG: All right. So let's first make it clear that it is completely fair for a Supreme Court nominee to avoid answering questions about contested constitutional cases, right?

RINGHAND: They have done that since the very beginning. What we see is that nominees kind of take two paths in these hearings. They tend to - or at least until very recently have been willing to - tell us what they think about previously controversial cases that we've kind of settled on now. But they do pretty typically with a few notable exceptions dodge the tough ones, the things that are currently controversial.

CHANG: And on the tough ones, the controversial cases, that's considered fair to do that.

RINGHAND: Yeah. What the nominees - say and they've said this pretty consistently for decades - is that their ethical duties as judges and future justices prevent them from giving opinions on cases that are likely to come before them once they're sitting on the court. And that involves concerns about perceived bias and concerns about not making promises in exchange for a seat.

CHANG: And that rule that a nominee can fairly sidestep questions about contested constitutional, issues, that's often been called the Ginsburg Rule referring to how Justice Ruth Bader Ginsburg handled her confirmation hearing. But I know that you argue the rule was poorly named. It shouldn't have been named after her. Why is that?

RINGHAND: (Laughter) Well, it's wrong in two ways. First of all, it attributes to Justice Ginsburg a practice that preceded her by decades. And secondly, she did avoid answering questions, as you noted, on controversial cases in her era that included, for example, the death penalty.

(SOUNDBITE OF ARCHIVED RECORDING)

RUTH BADER GINSBURG: A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.

RINGHAND: But she also gave firm answers and firm commitments to lots and lots of cases and questions, most notably when she was talking about reproductive rights.

(SOUNDBITE OF ARCHIVED RECORDING)

GINSBURG: It is essential to a woman's equality with man that she be the decision-maker.

RINGHAND: When we look at these transcripts over time, what we see is that the issues in cases that nominees are willing to talk about change. So when you look back at Potter Stewart's hearing just a few years after Brown was decided, he dances around Brown v. Board of Education the way later nominees dance around Roe. He simply wasn't going to give a firm opinion on that case.

CHANG: When Neil Gorsuch testified at his confirmation hearing, how do you think he handled it? How would you characterize his performance?

RINGHAND: Gorsuch was the least responsive nominee for decades. Not only did Gorsuch refuse to give his opinions on the currently hotly contested cases, he also refused to give clear answers to even well-settled cases like Brown v. Board of Education.

(SOUNDBITE OF ARCHIVED RECORDING)

GORSUCH: Brown v. Board of Education, Senator, was a correct application of the law of precedent and...

RICHARD BLUMENTHAL: But you agree with it.

GORSUCH: Senator, it is a correct application of the law of precedent.

RINGHAND: Gorsuch really put the senators in a difficult situation because one of the things that senators can learn from this process is which issues nominees think are on and off the constitutional table. When a nominee thinks an issue is well-settled, they'll usually tell us what they think about it. And if a nominee simply refuses to give a firm opinion about anything, senators lose that ability - they lose the ability to evaluate what the nominee thinks is in play and what isn't.

CHANG: That's Lori Ringhand. She's a professor at the University of Georgia School of Law. Thank you very much for joining us.

RINGHAND: Thank you. Transcript provided by NPR, Copyright NPR.