The nomination of Judge Neil Gorsuch has moved into a phase that is unique to the Supreme Court confirmation process: trying to predict how a justice will vote on particular issues and cases in the future.
This predictive process may occur in two phases. The first is well underway – vast amounts of commentary and analysis about how Gorsuch may handle everything from employment-law cases to white-collar-crime issues. The second phase will take place in just over a month, when the 20 members of the Senate Judiciary Committee try to figure out what kind of questions to ask the nominee that will actually shed any light on his views.
The stakes are enormous. Liberals hope to ascertain just how conservative Gorsuch really is, and some want to find a way to block his confirmation if their worst fears prove to be true. Conservatives want to be certain that he is genuinely conservative, cut from the mold of Justice Antonin Scalia, whose death a year ago created the vacancy that President Donald Trump has nominated Gorsuch to fill.
For liberals the struggle is in some ways a full dress rehearsal for the fight over the next vacancy that occurs on the Supreme Court after this one is filled. The conventional wisdom is that Gorsuch will simply restore the court to the balance that existed when Scalia was still on the bench: four solid conservatives, four liberals and Justice Anthony Kennedy in the middle, often deciding the outcome in close cases. If the next vacancy is created by the departure of any of the three oldest justices – Ruth Bader Ginsburg, 83; Kennedy, 80; or Stephen Breyer, 78 – then the appointment of a conservative would dramatically tip the balance on the court.
For conservatives the current struggle is also in part to lay the foundation for the fight over the next vacancy. However, it is also part of a prolonged effort to be sure that the nominees of Republican presidents are genuine conservatives. Conservatives value highly the need for reliable predictions because they believe they have been burned by a series of nominees by Republican presidents who turned out to be disappointingly moderate justices, including Harry Blackmun and Lewis Powell (appointed by Richard Nixon); John Paul Stevens (Gerald Ford); Sandra Day O’Connor and Kennedy (Ronald Reagan); and David Souter (George H.W. Bush). “No more Souters,” is a frequent battle cry for conservatives today.
With that understanding of what is at stake, let us turn to the fascination, perhaps even obsession, with predicting the behavior of Supreme Court nominees.
In just over two weeks since the nomination of Gorsuch was announced, hundreds of thousands of words have already been written trying to predict what impact he will have on particular legal fields or how he may approach specific issues. This commentary covers a wide range of perspectives, sometimes seemingly contradictory. First, there are the statistical analyses. For example, The Washington Post ran a column earlier this week by two political science professors who studied Gorsuch’s decisions on the U.S. Court of Appeals for the 10th Circuit in cases that were later reviewed by the Supreme Court. Their conclusion was that “Gorsuch may be more conservative than Justice Clarence Thomas.” But a day earlier, the blog Empirical SCOTUS analyzed the language in opinions written by Gorsuch and ran its conclusions under the headline: “Scaling Judge Gorsuch’s Opinions: Hints of a Possible Centrist.” When Gorsuch was nominated, The New York Times displayed a chart, based on an analysis by several other professors, that showed him as more conservative than both Scalia and Justice Samuel Alito but less conservative than Thomas.
Then there is the widest imaginable array of predictive analyses of specific legal issue areas. These range from a Scientific American blog analysis finding it “difficult to draw any firm conclusions” on Gorsuch and environmental law to a suggestion at Crain’s Cleveland Business that Gorsuch shows “a consistent reluctance to second-guess employer decisions.” An Associated Press analysis says he has been sympathetic to free speech claims but also supportive of religious groups in suits against the government. Another blog attempted with little success to discern how Gorsuch would view white-collar-crime cases. Many of these analyses are inconclusive because there are too few cases to evaluate and because as a federal appeals court judge, Gorsuch was constrained by existing precedents.
It is difficult to glean much from this commentary. And when the scene shifts to the Senate Judiciary Committee, senators will confront the challenge of how to get any accurate, predictive measure of this Supreme Court nominee. If the past is any guide, it will not be easy.
When Joe Biden was still a senator from Delaware, he referred to the Supreme Court confirmation process as “Kabuki theater.” This is because it resembles an odd dance in which senators try to elicit useful information from nominees who, in turn, try hard not to tell the Senate anything useful.
The dilemma is that most nominees to the Supreme Court feel that they cannot answer any questions that may commit them to specific positions or to views on particular cases. If they do, then they may have to recuse themselves from participation on those issues or cases when they come before the Supreme Court. Our judicial system, the prism of a nomination clarifies, turns on the idea that justices must approach each case with an open mind, committed to considering the specific facts and legal arguments for that dispute without preconceived notions.
Sparring over the merits of this approach has already begun among senators. Senate Majority Leader Mitch McConnell (R-Ky.) calls this the “Ginsburg standard” after a statement made by Justice Ruth Bader Ginsburg during her confirmation process. “No hints, no forecasts, no previews – that is what has become known as the Ginsburg standard,” McConnell said recently in a Senate speech.
Senate Minority Leader Chuck Schumer (D-N.Y.) has a different view. After he met privately with Gorsuch, Schumer wrote, “Judge Gorsuch must be far more specific in his answers to straightforward questions about his judicial philosophy and opinions on previous cases. He owes it to the American people to provide an inkling of what kind of justice he would be.”
Are there questions senators may ask and nominees may answer that will have any genuine predictive value? The answer is unclear. Some legal scholars have suggested that senators question nominees specifically about how they view past cases decided by the Supreme Court. This, they argue, would provide insight into the nominees’ thinking but would run less risk of creating conflicts for them as justices. Perhaps, but during his confirmation hearing in 1986, Scalia declined to discuss any cases, famously refusing even to answer questions about Marbury v. Madison, the 1803 landmark decision that laid the groundwork for judicial review. Some nominees have been more willing to discuss some past cases to a limited extent; almost all nominees discuss Brown v. Board of Education, for example.
Other lines of questioning are possible. Senators often ask about legal doctrines and tools: How much deference should courts show to the elected branches of government? What role should legislative history play in judicial interpretation? Does a nominee believe in the existence of implied rights in the Constitution, like privacy? What role does international law play in U.S. courts? Although these questions do not involve commitments on specific cases, nominees will still sometimes refuse to answer them because to do so may force them to outline particular approaches to deciding cases. Recent nominees have generally been willing to answer these questions but often in circumspect ways that do not reveal much about the way they would approach particular issues.
The frustrating result for the senators is that nominees often resort to less-than-insightful platitudes, like the oft-quoted declaration by Chief Justice John Roberts that judges are just like baseball umpires, calling balls and strikes, but not pitching or batting.
Judging by the commentary, Gorsuch will confront this dilemma most clearly over his expressed doubts about the important Chevron doctrine, a Supreme Court rule that says courts should defer to reasonable federal-agency interpretations of laws they administer. Adopted in 1984 in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., the rule has been much debated and heavily criticized by Gorsuch. Senators will pummel him with questions about what he has said and written about it. But if he is to hear cases as a justice on how to apply the Chevron doctrine or whether to overrule it, will he say he has to refrain from discussing it in any more detail than he already has, or will he feel obligated to explain his position?
This is how the hearings for Gorsuch will likely play out in the Senate Judiciary Committee. Between now and March 20, when the hearings begin, it is a safe bet that the senators and their staff will work hard to map out questions that will try to make the hearings more productive, whether their goal is accurate prediction of the nominee’s likely rulings or just a better understanding of what makes him tick.