Contrary to what some Republicans are arguing, it is not only acceptable to ask a Supreme Court nominee questions and expect specific answers; it is necessary. Nothing precludes a judicial nominee from answering basic and specific questions about judicial philosophy or how he or she would have decided past cases. The nominee would be no more biased than any of the justices who now sit on the court and issued opinions in those cases.
This is not a new idea, nor is it a view held only by one political side or the other. The foundation for asking questions of judicial nominees—and expecting answers—comes from everyone from a conservative Supreme Court Chief justice to law professors:
No less than conservative giant Chief Justice Rehnquist declared proof of a clean slate in a justice’s mind is not a good thing—in fact, it would demonstrate a lack of qualification. Chief Justice Rehnquist wrote that nothing “could be more important to the Senate” than a nominee’s views on hot-button issues, and “[t]he only way for the Senate to learn of these sympathies is to ‘Inquire of men on their way to the Supreme Court something of their views on these questions.’”
- Chief Justice William H. Rehnquist also wrote, “Proof that a justice’s mind at the time he joined the court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”
Legendary Constitutional Law Professor Charlie Black argued that a nominee’s views on the issues of the day should be relevant to a Senator’s deliberations on whether to support that nominee.
- Professor Black wrote, “…a Senator, voting on a presidential nomination to the Court, not only may but generally ought to vote in the negative, if he firmly believes, on reasonable grounds, that the nominee’s views on the large issues of the day will make it harmful to the country for him to sit and vote on the Court.”
Yale Law School Dean Robert Post and Yale Law School Professor Reva Siegel outlined in the Yale Law Journal a practice of questioning that is “fully consistent” with a “constitutional balance of values”—to ask how nominees would have voted in previous Supreme Court decisions.
- Post and Siegel argued that senators could ask judicial nominees how they would have voted on cases that the Supreme Court already decided, as “…such questions neither compromise the independence of the judiciary nor politicize the rule of law, but instead serve important structural values. They can help generate the democratic legitimacy necessary for courts to exercise the formidable power of judicial review.”
- They argue that these questions “…serve the democratic design of the confirmation process by revealing the operational content of nominees’ constitutional commitments. Asking nominees to disclose how they would have decided well-known Supreme Court cases prevents nominees from explaining their constitutional commitments in terms of abstract principles like ‘liberty’ or ‘equality,’ whose practical significance in particular cases and contested areas of constitutional law is unknown.”
- Post and Siegel conclude that this type of questioning would help a senator determine whether a nominee could independently interpret the Constitution.
A nominee’s disclosure of how he would have ruled on previously decided cases would make him no more biased in any future case than any of the justices who issued the original rulings.
Given this foundation, it is acceptable and necessary for Judge Gorsuch to give specific answers to specific questions. He must demonstrate to the American people that he can be an independent check on President Trump.
There are several questions Judge Gorsuch has refused to answer in private meetings thus far, claiming any answer would demonstrate bias:
- Would an unambiguous Muslim ban be constitutional?
- Which opinion would he have joined in Citizens United? Bush v. Gore?
- What did the framers intend with the Emoluments Clause in our Constitution?
Further, Judge Gorsuch saying he was “disheartened” by President Trump’s attacks on the judiciary in private is not enough to demonstrate independence from the president.
- A truly independent judge would condemn the president’s remarks, not just express disapproval, and to do it publicly.
- The White House’s assertion that Judge Gorsuch’s private remarks were not aimed at President Trump only raises further concerns about his independence.
There is a strong foundation for judicial nominees to answer Senators’ questions. Added to the fact that we are witnessing unprecedented strains on our Constitution and contempt for the judiciary from President Trump, Judge Gorsuch owes answers to straightforward questions to the American people in order to provide an inkling of what kind of justice he would be.
SOCIAL MEDIA GUIDANCE
- Now more than ever, #SCOTUS needs to be an independent check on an out-of-control administration. #checkandbalance
- You know the President has crossed the line when even Bush-attorney John Yoo cries foul: https://www.nytimes.com/2017/02/06/opinion/executive-power-run-amok.html?smid=tw-share&_r=1
- It is imperative that Judge Gorsuch clarify his position on POTUS’ attacks on the judiciary. No take backs: http://www.politifact.com/truth-o-meter/article/2017/feb/09/context-neil-gorsuch-called-donald-trumps-judiciar/
- #TBT to POTUS’ June attack on our judiciary. We need Judge Gorsuch to give his take: http://www.npr.org/2016/06/07/481140881/who-is-judge-gonzalo-curiel-the-man-trump-attacked-for-his-mexican-ancestry
- #TBT to POTUS’ latest attack on our judiciary. We need Judge Gorsuch to give his take: https://www.nytimes.com/2017/02/04/us/james-robart-judge-trump-ban-seattle.html
- Justice Rehnquist wrote: Nothing “could be more important to the Senate” than a nominee’s views on hot-button issueshttp://stanforddailyarchive.com/cgi-bin/stanford?a=d&d=stanford19711123-01.2.10&e=——-en-20–1–txt-txIN
- When it comes to choosing a #SCOTUS justice to rules in the interest of the American people, whose voices are REALLY being heard? [whose voice graphic]
- Will Judge #Gorsuch be a justice for the American people or for conservative special interests & billionaires like the Koch brothers? [whose voice graphic]
- As far back as college & law school, Judge Gorsuch was loyal to conservative causes. How can we trust him to be an independent justice?
- Throughout his career, Judge Gorsuch has been one of @FedSoc’s legal “experts” – can he be trusted to rule against their counsel?
- SCHUMER: Judge #Gorsuch owes it to the American people to provide an inkling of what kind of justice he would be.https://www.nytimes.com/2017/02/10/opinion/sunday/charles-schumer-judge-gorsuch-we-wont-be-fooled-again.html
- On the campaign, POTUS promised to only appoint #SCOTUS justices who would overturn #RoevWade. [Roe graphic]
- Pres Trump’s litmus test for #SCOTUS justices is someone who would overturn Roe v. Wade. What would happen?http://www.huffingtonpost.com/entry/donald-trump-abortion_us_58291447e4b02d21bbc955b8
- If Judge #Gorsuch passed Pres Trump’s litmus test on #RoevWade, what could that mean for you? http://www.motherjones.com/politics/2017/02/abortion-law-youve-never-heard-could-be-threat-during-trump-era
- Judge Gorsuch has support from the Koch brothers, @fedsoc & @heritage. They all supported #CitizensUnited. [money in pol graphic]