Supreme Court nominee Judge Neil Gorsuch meets with Senator Heidi Heitkamp (D-ND) at the Hart Senate Office Building on Wednesday, February 8, 2017. (Photo: Diego M. Radzinschi/ALM)
Now that March 20 has been set as the date Judge Neil Gorsuch’s Supreme Court confirmation hearing, what should members of the Senate Judiciary Committee ask him?
We canvassed prominent lawyers from around the country for what questions they would like to see asked. That is a trickier task than it may seem. Senators have long bickered over the proper approach to ask meaningful questions that nominees can answer without tipping their hand about how they would rule on controversial issues like abortion or affirmative action.
Most nominees have adopted the so-called “Ginsburg rule,” or some version of it—meaning they do not comment on their personal views of cases or issues that might come before them. At his 1986 confirmation hearing, the late Justice Antonin Scalia even declined to opine on Marbury v. Madison, the 1803 ruling that is the foundation of the Supreme Court’s authority to strike down acts of Congress.
Our reporters did the Senate a favor by rounding up some possible questions for Gorsuch.
Peder Batalden, Horvitz & Levy, Burbank
Do you intend to participate in the cert pool, or will you work with your law clerks separately (like Justice Alito) to analyze certworthy petitions?
Theodore Boutrous Jr., Gibson, Dunn & Crutcher, Los Angeles
Class actions are “an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.” Califano v. Yamasaki, 442 U.S. 682 (1979). What is your view of the role of class actions in our society and the tensions that can arise between class actions and due process?
Stephen Carter, Yale Law School professor and author of the 1995 book The Confirmation Mess, New Haven
My first question is one I hope will not be asked. I hope that no member of the Judiciary Committee will ask Judge Gorsuch to state a substantive view on any issue likely to come before the Supreme Court. The odious practice of trying to get nominees to disclose under oath how they will vote was started six decades ago by Southern segregationists, and should long ago have been tossed in the waste bin of history.
Laurie Webb Daniel, Holland & Knight, Atlanta
You have been nominated in a heated political environment; how will you exercise independence? In other words, what guides you in rendering a decision when the possible outcome is not consistent with your personal beliefs and preferences?
Douglas Hallward-Driemeier, Ropes & Gray, Washington, D.C.
In Obergefell v. Hodges, the majority expressly rejected the view that “liberty under the Due Process Clause must be defined in a most circumscribed manner, with central reference to specific historical practices,” noting that “[i]f rights were defined by who exercised them in the past, then received practices could serve as their own continued justification and new groups could not invoke rights once denied.”
Does Judge Gorsuch accept the principle, established in Obergefell, that fundamental rights and liberties cannot be defined by reference to the most specific level at which an historical tradition can be identified, because to do so would mean that only those groups who were historically privileged would enjoy the protection of fundamental constitutional rights in the present?
Linda Lye, ACLU Foundation of Northern California, San Francisco
What is your view of the role of the Court in reviewing executive action?
Jeffrey Fisher, Stanford Law School, Palo Alto
You’ve been described as an originalist. Assuming you embrace that label, it could, generally speaking, mean one of two things. First, it could mean that every constitutional question that reaches the Court must be decided according to how the Framers would have decided the question. Second, an originalist might think that the Framers deliberately used flexible words—such as “reasonable” in the Fourth Amendment and “cruel and unusual” in the Eighth Amendment—in some places in the Constitution to allow for modern understandings and developments to influence the outcomes of decisions. Which approach do you think is correct?
Arthur Hellman, University of Pittsburgh School of Law, Pittsburgh
What makes a precedent “settled,” so that you would not vote to overrule it even if you were convinced that the decision was wrong as an original matter? Can you give examples of controversial decisions from the last 50 years that you consider “settled”?
Alan Morrison, George Washington University Law School, Washington, D.C.
There is some debate about whether Justices of the Supreme Court are bound by the Code of Judicial Conduct, which you have been following since your appointment in 2006. Will you continue to abide by it if you are confirmed, regardless of whether you are required to do so?
Carter Phillips, Sidley Austin, Washington, D.C.:
Out of concern for my own wallet, I wish they would ask him whether he thinks the court deciding fewer than 75 cases a term is the right number or perhaps is a bit light and. If so, what number he thinks might be more appropriate? I think each justice since Chief Justice John Roberts’ confirmation has said the court should take more cases, but it doesn’t.
Leah Ward Sears, former chief justice of Georgia Supreme Court, partner at Smith, Gambrell & Russell, Atlanta
What is your opinion of President Donald Trump and his presidency thus far?
Darren Summerville, the Summerville Law Firm, Atlanta
In your remarks after being formally announced as President Trump’s nominee, you echoed other jurists in noting that “[a] judge who likes every outcome he reaches is very likely a bad judge.” Can you give us an example of any of your decisions that stand out as out of sorts with your personal views, but nonetheless the right outcome under the law?
Kyle Wallace, Alston & Bird, Atlanta
When is deference to an agency interpretation appropriate?