Jeffrey Peck was general counsel and staff director of the Senate Judiciary Committee from 1987 to 1992. He worked for then-Chairman Joseph R. Biden on the Bork, Kennedy, Souter and Clarence Thomas nominations to the Supreme Court.
“My job is to apply and enforce the law.” “I will approach any case with an open mind.” I will give “no hints, no forecasts, no previews.” These nice-sounding bromides from nominees — those selected by both Republican and Democratic presidents — tell us next to nothing. Maxims and slogans leave senators entirely in the dark.
To make an informed decision, senators must understand the nominee’s judicial philosophy and views on basic constitutional principles. Otherwise, they would be mere rubber stamps and violate their constitutional duty.
In their confirmation hearings, Robert H. Bork, Anthony M. Kennedy and David Souter each responded with much more specificity than more recent nominees. The questions asked and the answers given provide a workable model for the upcoming hearings, one on which senators should insist.
The Bork, Kennedy and Souter hearings tell us that questions such as the following can and should be asked — and answered:
•Do you believe the Constitution recognizes a right to privacy under the due process clause of the 14th Amendment? Is Griswold v. Connecticut, in which the court embraced this right, settled law?
•Do you agree with Justice Lewis F. Powell Jr. — whose seat Kennedy took — who wrote in Moore v. East Cleveland, “Freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the 14th Amendment”? Do you consider it a “fundamental” liberty such that the government may interfere only for extraordinary reasons?
•What factors would you weigh in determining whether a prior decision by the Supreme Court is settled law? Is Brown v. Board of Education settled law? How would you determine whether Roe v. Wade is settled law?
•What is your understanding of “one person, one vote” under the 14th Amendment and its relation to state gerrymandering practices?
•What examples would you cite of proper limits on the assertion of executive power by the president?
In each instance that these and similar questions were posed, Bork, Kennedy and Souter gave substantive answers about their philosophy and judicial methodology. Yes, Bork was defeated — but the American people got then, as they deserve now, honesty and specificity that provided a real window into his thinking. Kennedy’s responses, unlike Bork’s, showed him to be in the mainstream of judicial philosophy, respectful of settled law and non-dogmatic. He was responsive to the Judiciary Committee and confirmed by the full Senate.
Importantly, none of the answers imperiled the nominee’s impartiality in future cases, as evidenced by the fact that neither Kennedy nor Souter ever recused himself because of his testimony or was ever accused of deciding a case in a particular fashion because he had made a commitment to do so in his hearing.
Subsequent nominees and their political handlers have taken the wrong lessons from these hearings — focusing on Bork rather than Kennedy — in concluding that specific questions should not be answered. And subsequent Judiciary Committees have let nominees get away with non-answers.
With the court’s direction for decades at stake, this can’t continue. Just as President Ronald Reagan’s choice to replace the pragmatic centrist Powell determined the swing vote on the court for the past 30 years, so, too, will President Trump’s choice determine the swing vote on the court for the next 30.
Indeed, a unique set of facts about this nomination makes the need for real answers more compelling. The conservative Federalist Society and the Heritage Foundation supplied candidate Trump with his list of 25 potential nominees. The president has confirmed that his selection will come from this predetermined list; he promised, as a candidate, that a nominee’s views on abortion would be a litmus test and to appoint “pro-life” justices.
Under these circumstances, a nominee who refuses to answer the kinds of questions described here must be rejected. One can only assume that the nominee has indeed made up his or her mind — otherwise, he or she would not have been included on the list — but simply refuses to share those views with the Senate.
Let’s have real hearings with enlightening discussion, not fake ones with vapid cliches. The American people are entitled to know whether fundamental rights and liberties will be maintained, constrained or eviscerated. As the great Sam Ervin once stated, if the Senate “ought not to be permitted to find out what [the nominee’s] attitude is toward the Constitution or what [the nominee’s] philosophy is,” then “I don’t see why the Constitution was so foolish as to suggest that the nominee for the Supreme Court ought to be confirmed by Senate.”