The Ginsburg Standard: Judging a Nominee Who Won’t Answer Questions

Not everyone agrees with Justice Ginsburg that there are no questions a nominee can answer. 

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.

Even Justice Ginsburg supported thoroughly examining a nominee’s ideology and record. 

Republicans fail to quote the rest of what Justice Ginsburg said at her hearing:

“You have been supplied, in the five weeks since the president announced my nomination, with hundreds of pages about me, and thousands of pages I have penned—my writings as a law teacher, mainly about procedure; ten years of briefs filed when I was a courtroom advocate of the equal stature of men and women before the law; numerous speeches and articles on that same theme; thirteen years of opinions—well over 700 of them—decisions I made as a member of the U.S. Court of Appeals for the District of Columbia Circuit; several comments on the roles of judges and lawyers in our legal system.  That body of material, I know, has been examined by the Committee with care.  It is the most tangible, reliable indicator of my attitude, outlook, approach and style.  I hope you will judge my qualifications principally on that written record spanning thirty-four years, and that you will find in it an assurance that I am prepared to do the hard work, and to exercise the informed and independent judgment that Supreme Court decisionmaking entails.”

How Senators Will Evaluate Judge Gorsuch if he does Not Answer Questions

If Judge Gorsuch will not answer questions, Senators will have to evaluate him based on his written record as “the most tangible, reliable indicator of [his] attitude, outlook, approach and style.”

When they do, what they will find is:

Judge Gorsuch favors the powerful few over everyday Americans trying to get a fair shake.

• Judge Gorsuch has consistently favored big money, powerful special interests over the rights of working people, siding with insurance companies denying disability benefits and employers discriminating against employees.
• For example, Judge Gorsuch dissented in a case against a truck driver who was fired for leaving his truck when his life was in danger—siding with the driver’s employer. This case “illustrates how Gorsuch's fidelity to literal texts can lead to findings that, according to the Associated Press, appear to defy common sense and fairness.”
• The contrast between Judge Gorsuch’s persona and his record is reminiscent of a prior nominee, Chief Justice Roberts, who said he would serve as an umpire and call balls and strikes, but instead has systematically worked to dismantle the cornerstones of democratic protections against special interests, with cases like Citizens United and Shelby County. 

Judge Gorsuch’s record shows a belief in broad executive power and a fidelity to conservative republican causes

• Judge Gorsuch has shown no signs that he'd stand up to President Trump or right-wing orthodoxy. Judge Gorsuch came from President Trump’s “short list” of judges he would consider for the Supreme Court, which was “largely outsourced” to the right-wing Federalist Society and the Heritage Foundation.
• Documents from Judge Gorsuch’s time in the Bush Administration DOJ show he was closely involved in that administration’s assertions of executive power that was not subject to checks by the judiciary.  That history is deeply disconcerting in light of the fact that now more than ever we need a justice who act as a constitutional check on an overreaching executive. 
• Judge Gorsuch has made his right-wing political views known, expressing disdain for “the Left.”
  • He has criticized “liberals” for turning to the courts to advance policy.
  • He has shown disdain for the use of the courtroom to vindicate fundamental rights—a viewpoint that should be anathema to anyone in the legal system, but is particularly inappropriate for someone who seeks a seat on the highest court in the land.
    • On money in politics, he is in the same company as Justices Thomas and Scalia, having expressed extreme skepticism to the most basic campaign finance rules.