In this post, I’ll explain why.
To the public, a model judge is someone deeply learned in the law who is committed to deciding cases in an unbiased and open-minded way. Supreme Court nerds and law professors might be unimpressed by these things. Anyone can learn the law, they’ll tell you. And while it’s good to be open-minded, no Supreme Court nominee is actually a blank slate. But Supreme Court hearings are about communicating with the public and not law professors. The public sees fluency with existing law and open-mindedness about future cases as characteristics of a model judge. And that has a big impact on confirmation hearings.
[interstitial_link url="https://www.washingtonpost.com/opinions/supreme-court-nominees-should-weigh-in-on-these-rulings-youre-up-judge-gorsuch/2017/03/18/d54df6ac-0b2c-11e7-b77c-0047d15a24e0_story.html"]Supreme Court nominees should weigh in on these rulings. You’re up, Judge Gorsuch.[/interstitial_link]
Specifically, hearings can be short on revealing answers because nominees can always answer by using what I call “the fluency move” or “the open-minded move.” The fluency move is an answer that reveals the nominee’s deep understanding of existing Supreme Court doctrine. The open-minded move is an answer that rests on the nominee being open-minded about results and remaining committed to following the law wherever it goes in future cases. A nominee can do pretty well with just these two moves.
Consider the dynamic. Say a senator asks the nominee about a particular area of law. The nominee can start with the fluency move. He can explain the case law, discuss Supreme Court cases, and basically give a short lecture. (I’ll use the pronoun “he” just because the current nominee is male.) That’s pretty easy to do, and it can take up a lot of time.
Now say a senator asks the nominee about a controversial area, and in particular how he might rule in a future big case. Now the nominee turns to the open-minded move. First, he can decline to answer on the ground that he wouldn’t want to prejudge the case. This is the so-called Ginsburg standard, and it’s premised on the idea that the judge will be biased in a future case if he offers a current tentative answer. Whether you find that persuasive, it’s the open-minded move. I’d like to answer, the nominee is saying, but I care so much about being open-minded that I don’t want to interfere with my own future open-mindedness.
The senator might try a different approach. If the nominee won’t answer how he’ll rule in a future case, maybe he’ll say how he would rule in a past case. But this strategy is easily countered by the fluency move. The nominee can explain how the Supreme Court decided the past case and then say that the decision is “settled law.”
The senator might follow up. Yes, that’s settled law now, but how would you go about deciding whether to overturn it? The nominee can again use the fluency move. The nominee can explain the Supreme Court’s statements about stare decisis, and he can go through the factors that the court says justices should consider.
If the senator pushes the nominee to apply the case law on stare decisis and answer how he might rule on a particular case, the nominee can go back to the open-minded move. He can promise that he will apply the law of stare decisis fairly and thoughtfully. He can then explain that he cannot answer which result he would reach in a particular case because he wouldn’t want to prejudge it.
[interstitial_link url="https://www.washingtonpost.com/opinions/we-dont-need-a-truce-in-the-judicial-nomination-war-the-bork-fight-shows-why/2017/03/20/5e533d76-0d63-11e7-ab07-07d9f521f6b5_story.html"]We don’t need a truce in the judicial nomination ‘war.’ The Bork fight shows why.[/interstitial_link]
In a recent essay, Randy Barnett and Josh Blackman argue that senators should require nominees to identify the original public meaning of different clauses as a way to gain insight into their views. I don’t think this strategy would work because it is too easily countered by the open-minded move. The nominee can explain that there is a robust scholarly debate over the original public meaning of that clause among some of the country’s top legal scholars. In light of that debate, the nominee can say, it would be improper to say which view of the history is correct without devoting the weeks of work that would be needed to answer the question.
None of this means that nominees won’t give revealing answer or that the confirmation hearings are unimportant. Most obviously, nominees sometimes choose to give revealing answers. They may have a perspective they want to share, and questioning can bring it out. The hearings are also an important way for parties to tell the public and future justices about their constitutional priorities and worldviews. Even if the answers aren’t revealing, the questions themselves (and the senatorial comments that precede them) can be important. But I don’t think there’s a magic way to make nominees give revealing answers.