In her 1993 U.S. Supreme Court nomination hearing, Ruth Bader Ginsburg vowed she would make “no hints, no forecasts, no previews” on issues that might face the Court. But she did respond to some questions about past high court rulings, agreeing, for example, with the decision in Moore v. East Cleveland that a housing ordinance’s definition of “family,” which excluded a grandmother living with her son and two grandsons, violated the grandmother’s due process rights.
In his 2005 hearing, John Roberts Jr. said he had “no quarrel” with Moore. But in answers to questions submitted after the hearing, he explained “no quarrel” did not mean he was agreeing with that decision or four others with which he said he had “no quarrel,” only that he would treat them as precedents.
What line will Judge Sonia Sotomayor walk during the next few days? Inevitably facing questions on the high court’s reversal of her circuit panel’s decision in the controversial New Haven, Conn., firefighters’ discrimination case, will she shed light on the panel’s handling of that case? Will she respond to claims that she is anti-gun by answering questions about the Second Amendment and a ruling she joined that held the amendment does not apply to the states?
As the Senate hearings unfold on her historic nomination to the Supreme Court, a nearly century-old battle over what questions can be asked and answered likely will continue with undiminished fervor. This battle triggers repeated complaints that the hearings are meaningless or useless because nominees and their supporters on the Senate Judiciary Committee use the shield of judicial ethics to fend off substantive questions by other senators.
“This fight about what questions are appropriate to ask has been going on since the hearings began,” said Lori Ringhand of the University of Georgia School of Law. Ringhand, using a research grant, is compiling a database of hearing statements made by every Supreme Court nominee. “Depending on which party wants the nominee confirmed, you’ll hear one arguing that certain questions interfere with judicial impartiality and the other party insisting the Senate has a constitutional duty to inquire. The issues change, but the dynamic doesn’t.”
But the dynamic could change, argue some scholars and high court watchers. Senate Democrats on the Judiciary Committee have a rare opportunity to set rules or change procedures that could result in more substantive answers to questions, they contend, because there is little political risk with Democrats controlling the White House and the Senate and with the breakthrough nomination of Sotomayor — the first Hispanic nominee and one who is likely to be confirmed barring a huge surprise.
Legal scholars, political scientists and others offer a variety of ways to make the questioning more meaningful, from focusing questions only on clauses of the Constitution to using special staff counsel to do the questioning.
But even those who have expended much energy writing and discussing how to improve the process are not optimistic this time around.
“The incentives really haven’t changed — the incentive of the nominee to say as little as possible; the incentives of senators who, because of television, want to look smart but also accessible,” said Vikram Amar, associate dean of the University of California, Davis School of Law. “There are a lot of institutional participants, and not one of them has a real incentive to make this process more meaningful and professional.
“I’m not looking at this hearing to be a quantum leap forward.”
SAME OLD, SAME OLD
What University of Connecticut’s David Yalof calls the “song and dance” over what can be asked and answered gained additional prominence when the so-called Ginsburg Rule — “no hints, no forecasts, no previews” — came back to haunt the hearings on the nominations of Roberts and Samuel Alito Jr.
During the Roberts hearings, recalled Yalof, there was a “really quite heated” exchange between Roberts and then-Sen. Joseph Biden (D-Del.) over the latter’s questions about whether Roberts agreed with certain Supreme Court precedents.
“Biden’s argument was: Ginsburg answered these questions, why can’t you?” said Yalof. What followed was a debate inside and outside of the committee about the type of questions that Ginsburg actually answered and Roberts appeared to evade.
“I think the reforms that seem to make the most sense are those that attempt to ask the meaty questions at least in hopes of getting answers,” said Yalof.
But what are those? Former Acting Solicitor General Walter Dellinger, head of the Supreme Court and appellate practice at O’Melveny & Myers, said the hearings have suffered from acceptance that nominees should not answer questions about issues that might come before the Court.
“I have always thought, and still think, that is wrong,” he said. “We know what Justice [Antonin] Scalia’s opinion is about Roe v. Wade, and we know what Justice [John Paul] Stevens’ opinion is about Roe, but that doesn’t prevent them from sitting on the next case involving Roe. Any nominee should answer questions about the issue and should say, in terms of a case that may come before the Court in the future, they would have to read the briefs and hear the arguments before making a decision.”
That change is unlikely to happen, he added. But the Judiciary Committee, he suggested, could take a step that would make “a great deal of difference” by using a senior staff person to conduct a full day of questioning the nominee in the way that Samuel Dash performed as counsel to the Watergate investigating committee.
The Watergate and Iran-Contra hearings involved complex and convoluted issues, and using staff counsel to ask questions “really worked,” agreed Yalof.
“Obviously the downside is, to some extent, the unaccountability aspect of it,” he said. “When senators aren’t asking questions, there is a sense of unaccountability for the people who are.”
CASES, CLAUSES, CONSEQUENCES
Robert Nagel of the University of Colorado School of Law proposes that senators quiz Sotomayor on how the Court’s decisions have affected American culture and politics. Instead of asking Sotomayor for her views on whether a right to privacy can be found in some legal penumbra, he said, she should be asked about the social consequences of Roe v. Wade and whether it intensified the conflict over abortion. And, he added, she could be asked about the role of the court in deciding Bush v. Gore.
The senators, he said, tend to ask questions very familiar inside law schools. “They don’t tend to ask questions that nonlawyers would be interested in — the larger social and political consequences of the Court’s rulings.”
One advantage to his questions, he said, is that the senators and the public learn how much of the existing literature on these kinds of broader questions the nominee knows. “If they don’t know, that’s a sign they never transcended the limits of professional training.”
U.C. Davis’ Amar argues that the only real way to get a sense of what someone would be like as a justice is to ask that person to critique past Supreme Court decisions and say who wrote the better decision and why.
Amar agreed with Dellinger that such an approach does not impair a nominee’s impartiality once confirmed or violate judicial ethics canons. Those standard responses, he said, are “hooey.”
“The line is between offering one’s tentative views about a case versus making a promise to resolve a case a certain way,” he said.
Although he said he doesn’t have a “strong negative opinion” about Amar’s approach, Randy Barnett of Georgetown University Law Center cautioned that it comes very close to asking about results in current cases.
“But I think you can ask a nominee legitimate questions about the various clauses of the Constitution that they are going to be called on to interpret,” Barnett said. “There’s nothing improper in asking whether the necessary and proper clause is totally open-ended or whether Congress has broad powers under Section 5 of the 14th Amendment. Boy, would that be a great conversation!”
Although Sotomayor is virtually assured of confirmation, her hearings may be most interesting for more subtle reasons, said Stephen Wermiel of American University Washington College of Law.
“Do Democratic supporters ask her hard questions or just softballs — there are things they would genuinely like to know about her views, but will they ask?” he said. “What kinds of questions do Republican senators pose?”
And finally, he said, “Where does Sotomayor draw the line about what types of questions she will answer about past decisions or about legal doctrines?”
Marcia Coyle can be contacted at email@example.com.