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Save the constitutional questions for prospective Supreme Court justices
Two of President Donald Trump’s judicial nominees have refused to tell senators whether the Supreme Court acted correctly in Brown v. Board of Education, the landmark 1954 decision holding school segregation unconstitutional. For the more paranoid elements of the left, the fact that Wendy Vitter and Andrew Oldham dodged Democratic Senator Richard Blumenthal’s question about the decision signals a plot to undermine the precedent.
There’s no such plot. The idea that judicial nominees should decline to comment on certain legal matters is widely accepted, and there is no consensus on what the scope of that reticence should be. Vitter and Oldham acted on a coherent, and defensible, view of that question. But the whole matter could stand to be rethought.
The nominees have two reasons for declining to answer senators’ questions. One is to avoid creating lines of attack for opponents. If Vitter and Oldham had told Blumenthal they agreed with Brown, he would have asked them next about Roe v. Wade — and they would no longer be able to refuse on principle to say what they thought of Supreme Court precedents. If they said they thought it was mistaken, he could attack them as enemies of reproductive rights (even if they committed to following Roe as a controlling precedent). In March, Blumenthal set this trap for another nominee, who fell for it.
The high-minded reason for not answering questions is to safeguard judicial independence and impartiality. For an extreme example of how confirmation hearings could threaten those goods, imagine a senator who asked a nominee how he would vote in a pending case. A nominee who answered the question would compromise the litigants’ ability to receive a fair trial — especially if it was clear that the nominee had won the senator’s vote by giving the desired answer.
Nominees have typically felt that even questions that are not tied to pending cases could call their impartiality into question. During her confirmation hearings for the Supreme Court, Justice Ruth Bader Ginsburg said she would offer “no forecasts, no hints.” She refused to answer questions about school vouchers and gay rights, among other topics, because they might come before her on the court.
But nominees have not agreed on how parsimonious to be in their answers. Some have commented on precedents that have very little chance of being revisited. Is it permissible to comment on cases that have very little chance of being revisited? Justice Antonin Scalia went so far as to refuse to say, during his own hearings, what he thought about Marbury v. Madison, the foundational 1803 case in which the Supreme Court first set aside a federal law as unconstitutional.
As a nominee, Justice Neil Gorsuch praised Brown v. Board of Education: “a seminal decision that got the original understanding of the 14th Amendment right and corrected one of the most deeply erroneous interpretations of law in Supreme Court history.” In 1995, Elena Kagan wrote that the conventions surrounding confirmation hearings had made it hard for senators to get useful information from the nominees. By 2010, facing confirmation herself, she thought better of silence.
In thinking through what kinds of questions judicial nominees should be expected to answer, the distinction we should make is not whether a legal precedent is well-settled or controversial. It’s whether the nominee is to a lower court or the Supreme Court.
Lower-court nominees like Vitter and Oldham can reasonably say that their views on a wide range of legal questions are irrelevant to the jobs for which they are interviewing. They may agree or disagree that the Constitution, rightly understood, requires governments to recognize same-sex marriages. If confirmed they would be bound to apply the Supreme Court’s ruling on this question whatever their own views on it.
Supreme Court justices are not so bound, and so the scope of questions they should be expected to answer should be broader. Because of concerns about fairness and independence, any answer should include the disclaimer that the nominee reserves the right to change his mind and will consider all the facts of a case in deciding it.
But those concerns can’t be a bar to asking about a Supreme Court nominee’s constitutional views. The justices, after all, routinely make decisions that turn on views they have expressed in previous cases or in law-review articles. Nobody thinks that any litigant’s right to a fair trial is infringed or any justice’s independence eroded as a result.
The idea that senators (and presidents) should not ask prospective justices specific questions about their constitutional views weakens our system’s checks on the Supreme Court — checks that are already weak without that idea. Constitutional decisions by the court, no matter how erroneous, can’t be undone by Congress or by state governments. Constitutional amendments to undo them can’t be ratified so long as those decisions have any political support. No justice has ever been removed for overreaching.
It’s not surprising, then, that the justices have played an ever-larger role in policymaking. Elected officials should at least try to find out how they will use that vast power before handing it to them.
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