The moment has arrived: this week, we finally have Supreme Court confirmation hearings before the Senate Judiciary Committee. This is the culmination of a series of unusual political events that took place after Justice Antonin Scalia’s untimely death in February 2016.
Indeed, when Scalia died, President Barack Obama had almost a year left in office, so it seemed likely that he would get to select the Court’s next justice. But it was an election year—and the last time that a Senate controlled by the party not in the White House confirmed a Supreme Court nominee to a vacancy that arose during a presidential election year was 1888. Accordingly, Republicans vowed not to consider any high-court nominee until after the election. In a politically polarized nation that had reelected a Democrat to the presidency in 2012 and then gave Senate control to the GOP in 2014, they were determined to let the people have another say regarding who would get to appoint the next justice.
Nevertheless, Obama nominated Judge Merrick Garland, a seemingly uncontroversial pick designed to pressure Senate Republicans to cave. As Donald Trump became the Republican nominee and the electoral winds blew harder against the GOP, Senate Majority Leader Mitch McConnell’s #NoHearingsNoVotes gambit (which I supported) seemed increasingly ill-advised. But the unlikely happened: Trump not only won the presidency, but he picked his nominee from a gold-plated list of 21 candidates that he had issued during his campaign.
Since Judge Neil Gorsuch of the Denver-based U.S. Court of Appeals for the Tenth Circuit was nominated on January 31, his chances of joining the high court have only improved. A recent survey showed that 91 percent of Democratic congressional staffers expect him to be confirmed, as Democratic senators have failed to find any salient items that would merit disqualification. Sure, activists will attempt to tar Gorsuch as anti-women, anti-worker, anti-this-that-and-the-other, but the mild-mannered originalist is anything but the cartoon Monopoly Man this caricature tries to paint. And the argument about how this is a #StolenSeat isn't going anywhere because that was litigated at the election.
So this may all be anti-climactic. As I wrote in The Federalist on Friday:
To be sure, such hearings have become kabuki theater. Senators from the president’s party toss softballs that let the nominee display his or her erudition, while opposing senators ask “gotcha” questions that anybody skilled enough to be nominated can evade with ease. Indeed, the nominee in the supposed hot seat has been trained for weeks to talk a lot while revealing very little, literally running out the clock allotted for each senator’s questions while executing what’s been called the (Ruth Bader) Ginsburg “pincer movement”: refusing to analyze hypothetical cases because those issues might come before the court and then declining to discuss broader doctrinal issues because judges should only deal in specifics.
As one observer put it: “When the Senate ceases to engage nominees in meaningful discussion of legal issues, the confirmation process takes on an air of vacuity and farce, and the Senate becomes incapable of either properly evaluating nominees or appropriately educating the public.” Untenured law professor Elena Kagan was not wrong in writing that back in 1995, even if the would-be justice recanted her emperor-has-no-clothes logic when she herself became a nominee.
But it doesn't have to be that way. This is a singular chance to educate the American people about constitutionalism and the legal process. Senators could ask real questions, about the meaning of different constitutional or statutory provisions divorced from any pending or hypothetical cases. They can try to gauge whether the nominee's commitment to stare decisis (not overturning incorrect but longstanding precedent) is relatively strong (like Scalia) or less so (like Justice Clarence Thomas). Especially given Gorsuch's Oxford doctorate in legal philosophy, they can get at some deeper jurisprudential or philosophical issues without asking the nominee to either comment on pending cases (like the immigration executive orders) or generate out-of-context fodder for the evening news (anything about Roe v. Wade).
For possible questions, read the rest of my piece, or George Will's latest column, or a more detailed document that I prepared; I wonder if any senator will hit these detailed questions. And in last fall's National Affairs, Randy Barnett and Josh Blackman have a longer essay about how to make confirmation hearings great again.
Finally, here's a sketch of the logistics. On Monday, starting at 11 am, we'll get opening statements from the senators—this will likely show what lines of attack the Democrats plan to pursue—plus Gorsuch's swearing-in and opening statement. Tuesday and Wednesday will be the senators' actual questioning of the nominee: two, maybe three rounds. Thursday will feature panels of witnesses testifying for and against Gorsuch. (I won't be there because will be speaking on this very subject at Michigan State Law School, but catch my views Tuesday and Wednesday evenings on PBS NewsHour and Friday morning on Fox News, among other media.)
It's game time!