Michael Dorf: What We Are Learning About Judge Gorsuch

This article first appeared on the Verdict site.

The Senate Judiciary Committee hearing underway to consider whether to recommend confirmation of Judge Neil Gorsuch to fill the current Supreme Court vacancy has all the hallmarks of what then-Senator Joe Biden famously called a "kabuki dance" during the 2005 confirmation hearing for now–Chief Justice John Roberts.

Republican Senators praise Gorsuch's credentials and integrity, while Democrats try in vain to elicit statements from the nominee that show how extremely conservative he will likely be on a range of issues.

The same dance occurs when Republicans deign to hold a hearing on a Democratic nominee, except then the Republican senators vainly attempt to show how liberal the nominee will be.

Given the reality that the hearing is political theater, it is hard to disagree with the assessment of Elena Kagan, who as a young law professor labeled the Supreme Court confirmation hearings she had recently witnessed "a vapid and hollow charade."

Yet despite the defects of Judiciary Committee hearings as a means of discovering and publicizing nominees' views on the most divisive legal issues of the day, they serve an important function in our democracy.

In general, they offer an opportunity for the public to learn about our legal system. And this time around they also offer a much-needed opportunity to reaffirm shared commitments to the rule of law.

Why Nominees Are Not Forthcoming

In her trenchant critique of the confirmation process circa 1995, Kagan objected to what she described as a "pincer movement" by nominees. Kagan illustrated her point with quotations from her now-colleague Ruth Bader Ginsburg's confirmation hearing, but an updated version of Kagan's article could point to almost any hearing in the last three decades, including her own.

What did Kagan mean by a pincer movement? If a senator asked a specific question—such as whether the nominee thinks Roe v. Wade was rightly decided—the nominee demurred on the ground "that an answer might forecast a vote and thus contravene the norm of judicial impartiality."

But general questions were no more effective, because "Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling."

As a law professor, Kagan, like many other academics and like senators who are not in the same party as the nominating president, called for more open answers by the nominee. She lamented that "repetition of platitudes has replaced discussion of viewpoints and personal anecdotes have supplanted legal analysis."

Yet calling for Supreme Court nominees to be more forthcoming in their answers to senators' questions is a bit like calling on a job applicant to give a completely candid answer to the question "What is your biggest weakness?" "I'm too much of a perfectionist" will help the candidate land the job. "I have no passion for this line of work and am only doing it for the money" will not.

Supreme Court nominees are job applicants trying to impress a hiring committee with highly polarized views. Giving a completely truthful answer to the question whether the Constitution protects a right to abortion or forbids race-based affirmative action will alienate roughly half of the committee, regardless of the answer given.

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True, in the current circumstances, Judge Gorsuch might be able to get away with committing to some truly conservative positions, because the Republicans could always "go nuclear" and change the Senate rules to permit a merits vote based on a simple majority, but there is little reason for Gorsuch to provoke that response, because he knows he can get away with the pincer movement.

Under questioning from Senators yesterday, Judge Gorsuch did just that. He also avoided giving informative answers by repeatedly describing existing precedents while declining to say whether he agreed or disagreed with those precedents. In short, Judge Gorsuch followed the by-now standard script to the letter.

A Civics Lesson

In an opinion column about a year ago, professors Paul Collins and Lori Ringhand called into question the conventional wisdom that confirmation hearings are uninformative. They noted that in responding to senators' questions, nominees "are outright evasive less than five percent of the time."

Yet Collins and Ringhand immediately then acknowledged that the questions nominees refuse to answer "tend to reflect controversial issues in which the American public has deeply divided opinions, such as abortion rights." Put less sympathetically, they found that Supreme Court nominees are evasive only on the questions that most interest the senators and the public.

Still, if their own evidence belied the challenge that Collins and Ringhand posed to the received wisdom that nominees evade questions, they were nonetheless correct in their further claim "that confirmation hearings give the American people...a much-needed opportunity to talk about our Constitution."

People tuning in to find out whether Judge Gorsuch intends to vote to overturn Roe v. Wade will not get a clear answer, but they will hear much that is important. In other words, then-professor Kagan was wrong when she wrote that platitudinous confirmation hearings "serve little educative function, except perhaps to reinforce lessons of cynicism that citizens often glean from government."

At a bare minimum, Americans watching the Gorsuch hearing learn what the law is on a variety of subjects. Surveys (such as this one) repeatedly show that Americans know shockingly little about the most basic facts about our government, like the fact that it consists of three branches.

To be sure, the sort of person who chooses to watch even part of a Supreme Court confirmation hearing probably knows a good deal more than the average American, but he or she still would not have the depth of knowledge of a specialist.

Watching the Gorsuch hearing, a viewer might learn that courts generally defer to administrative agencies' construction of federal statutes delegating them rulemaking authority, that non-citizens have rights under the Constitution, or that the original Bill of Rights limited only the federal government and not the states.

As importantly, viewers of the Gorsuch confirmation hearing might learn that there is a robust debate about how to interpret the Constitution and federal statutes. Republican candidates for office often describe judicial rulings they dislike as fundamentally illegitimate.

For example, during a September 2015 presidential primary debate, former Arkansas Governor Mike Huckabee unctuously pronounced that in finding a right to same-sex marriage in the Constitution, a majority of justices on the Supreme Court failed "ninth-grade civics" because they forgot that "the courts cannot legislate." Because Huckabee was surrounded by like-minded Republicans when he made that charge, no one rose to the court's defense.

However, during Supreme Court confirmation hearings, viewers learn that "judicial legislation" is simply a rhetorical label that conservatives attach to liberal rulings they dislike and that liberals sometimes attach to conservative rulings they dislike.

The real debate is not over whether the court should stick to its judicial role. Everyone agrees that it should. The debate is over how to construe the Constitution and statutes.

Hearing Democratic senators question Judge Gorsuch, viewers can learn that the decision to be an "originalist" or a "textualist" is itself an ideologically laden choice, and that even if a judge or justice chooses such an approach, he leaves a great deal of room for his values to inform his rulings.

Finally, at this particular historical moment, the Gorsuch hearing provides an essential opportunity for bipartisan repudiation of President Donald Trump's irresponsible attacks on the judiciary.

During ordinary times, a nominee's statement that he or she would act independently of the White House or that "no man is above the law" (a phrase Judge Gorsuch repeated several times yesterday) could be dismissed as mere platitudinous pabulum. But these are not ordinary times.

As a candidate, Trump declared that an Indiana-born judge could not fairly adjudicate a case against him because he is Mexican-American. As president, Trump referred to an appointee of President George W. Bush as a "so-called judge" because he had the temerity to rule against Trump's first executive order restricting entry into the United States by refugees and nationals of various predominantly Muslim countries.

Certain fundamental precepts become platitudes because they are and deserve to be taken for granted. When the president of the United States recklessly calls such core principles into question, they warrant repeating.

Better a kabuki dance set to the anodyne music of platitudes than Trump's theater of the absurd.

Michael C. Dorf is the Robert S. Stevens professor of law at Cornell University. He blogs at DorfOnLaw.org.