WASHINGTON – Another Supreme Court nomination hearing is here, so brace yourself for talk of kabuki – as in then-Sen. Joe Biden’s 2005 formulation during the confirmation hearings for Chief Justice John Roberts, “this kabuki dance.” Or, in the tart assessment a decade earlier, by then-law professor Elena Kagan, before she found herself on the other side of the dais, that the confirmation process had become “a vapid and hollow charade.”
Kabuki, charade – perhaps, yet there is an elegance to the art form, and a challenge to playing the game. As limited, unsatisfying and exasperating as the hearings in their current incarnation may be, they remain superior to the alternative: not to bother with the endeavor at all. The point shouldn’t be to produce a gotcha moment to tank a nominee, but to conduct a job interview on behalf of the people.
There is value in that enterprise – value in asking questions even of a nominee who dodges, and value that can be extracted in obtaining even noncommittal answers. If nothing else, a confirmation hearing offers … a mini-seminar in constitutional law. It helps illuminate the quality of a nominee’s thinking and knowledge of the law.
And it serves as a touchstone against which to measure a nominee’s subsequent performance on the high court. When Justice Neil Gorsuch, in his first term on the court, voted to overturn a 41-year-old labor law precedent, at least that vote could be contrasted with his high-minded assertion, at his confirmation hearing the year before, about the importance of precedent as “the anchor of the law.” You could take this as proof of the meaninglessness of platitudes from judicial nominees, but is it not preferable to at least be able to point to the dissonance between promise and performance?
Even within the name-rank-and-serial-number limitations of recent hearings, there are potentially useful avenues of inquiry. Asking a nominee to opine on either previous cases or pending legal issues isn’t going to produce much. But seeking elaboration about the nominee’s own statements and rulings can be more fruitful. For example:
• Maine Republican Sen. Susan Collins has said you told her that Roe v. Wade, the 1973 ruling guaranteeing a right to abortion, is “settled law.” Please explain what you mean by “settled law,” and describe the circumstances under which you think the court should overturn a precedent that meets that test. How much does it matter whether a precedent has been repeatedly reaffirmed, as has Roe?
• You have described late Chief Justice William Rehnquist as “my first judicial hero.” As you remembered your time at Yale Law School: “After I read the assigned reading, I would constantly make notes to myself – agree with Rehnquist majority opinion. Agree with Rehnquist dissent. Agree with Rehnquist analysis. Rehnquist makes a good point here. Rehnquist destroys the majority’s reasoning here. … In class after class, I stood with Rehnquist.” Please identify the Rehnquist opinions or dissents you agreed (with and) elaborate how … Rehnquist “righted the ship of constitutional jurisprudence.”
• … You contrasted Rehnquist’s dissent in Roe with his 1997 majority opinion in Washington v. Glucksberg finding no constitutional right to assisted suicide. … You noted Rehnquist’s success in “stemming the general tide of freewheeling judicial creation of unenumerated rights.” Given your seeming praise for Glucksberg and observation Rehnquist’s ruling “was not consistent with the approach of the abortion cases,” including the 1992 decision reaffirming Roe … (do you) not believe the constitution protects abortion rights?
• In a 2017 speech honoring Justice Antonin Scalia, you lamented the “vague and amorphous tests” devised by the Supreme Court for deciding constitutional cases, including the current “undue burden” standard for determining whether restrictions on abortion are permissible. Such malleable tests, you suggested, “can at times be antithetical to impartial judging and to the vision of the judge as umpire.”
In a case later that year, you found it did not constitute an “undue burden” to force a 15-week-pregnant 17-year-old Central American detainee, who had already waited seven weeks, to endure additional delays before obtaining an abortion. Dissenting, you criticized the majority for creating a right to “abortion on demand.” How so? If that delay did not amount to an “undue burden,” what would? (Were) you an impartial umpire in her case?