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SAY WHAT? — After a Supreme Court term in which five conservative justices asserted themselves to remake laws surrounding abortion rights, gun control, government regulations and prayer in public spaces (all positions of longstanding emphasis in the conservative Federalist Society and matters of intense political pressure from the right) many of the justices were accused of having mislead senators by proclaiming their impartiality in their confirmation hearings.
To review, the justices who were most aggressive in remaking court precedents along very predictable conservative lines spent much of their hearings touting their open minds and lack of any agenda:
Clarence Thomas: “I think it is inappropriate for any judge who is worth his or her salt to prejudge any issue or to sit on a case in which he or she has such strong views that he or she cannot be impartial. … You have to sit. You have to listen. You have to hear the arguments. You have to allow the adversarial process to think. You have to be open.”
Sam Alito: “It would be wrong for me to say to anybody who might be bringing any case before my court, ‘If you bring your case before my court, I’m not even going to listen to you. I’ve made up my mind on this issue. I’m not going to read your brief. I’m not going to listen to your argument. I’m not going to discuss the issue with my colleagues. Go away — I’ve made up my mind.’ That’s the antithesis of what the courts are supposed to do.”
Neil Gorsuch: “These days we sometimes hear judges cynically described as politicians in robes. Seeking to enforce their own politics rather than striving to apply the law impartially. If I thought that were true, I would hang up the robe. But, the truth is, I just don’t think that’s what a life in the law is about.”
Amy Coney Barrett: “Judges can’t just wake up one day and say, ‘I have an agenda. I like guns, I hate guns. I like abortion, I hate abortion,’ and walk in like a royal queen and impose their will on the world.”
Senators including Maine Republican Susan Collins and West Virginia Democrat Joe Manchin, who claimed to have taken these assertions at face value, have been criticized and even ridiculed for their credulousness. After all, many people have come to regard Supreme Court confirmation hearings as a stage play in which nominees piously refuse to discuss issues upon which everyone knows they hold strong views.
Now that the band-aid has been ripped off of this process, is it likely to change? Will would-be justices come under fresh pressure to come clean about their agendas before they receive lifetime appointments to the bench?
Nightly spoke to Gabe Roth, executive director of the non-partisan judicial reform group Fix the Court about the future of the confirmation process.
Now that senators can see the danger of not getting clear answers about judicial candidates’ political positions at their confirmation hearings, do you think they will push harder to do so in the future?
How can [they]? What are [they] going to ask about, affirmative action? That is the case open before the court … I think that, if anything, this is just going to lead to more speeches by the senators who are either unhappy with the recent opinions or are very happy with the recent opinions and want to crow about it.
Everyone knows the political inclinations of judicial candidates. There’s no question at this point. There used to be this theory that you want someone who you don’t know what they think [as a nominee], but we’re no longer in that world. We’re getting party activists and partisans as our judiciary nominees. I don’t think there’s a way to fix it without a constitutional amendment because no one’s going to disarm. No one is going to voluntarily say, “When Ron DeSantis is president, we Republicans are going to go back to a 60-vote majority [for judicial confirmation].”
What else can be done, then, to fix the Senate confirmation process so that it would function less as a political theater?
Right now, what we have is a back and forth between the Senate and a nominee from which we learn almost nothing. And then after, we have something called “Questions for the Record,” where each senator can send the nominee as many questions as they want about any topic.
I like the idea of reversing the order, asking questions for the record ahead of time. Once senators have those answers, then they can home in on some of the questions that they would want to learn more about from the nominee. If senators have 20 questions each, they can have a sense of how the nominee is … ahead of time.
What we now have is this like disorganized free-for-all, where all senators are trying to create a “gotcha moment” for television and to surprise the nominee.
What if judicial nominees, knowing that they would only face a limited number of questions from senators, would answer them in eloquent non-answers and dodge the most contentious issue at hand?
Maybe. I totally get that. Reversing the order is not like a brilliant thing. It’s just a cute idea to try to do something. The process is so broken that at this point I feel like there’s no bad idea.
