February 1 2017
Americans are bracing for a big political fight now that President Trump has nominated Tenth Circuit Court of Appeals Judge Neil Gorsuch to replace the late Justice Antonin Scalia on the Supreme Court. But the nomination of a Supreme Court Justice has not always been an occasion for handwringing.
President George Washington’s six nominees were confirmed by a voice vote just two days after their nomination.
Nor have the confirmation hearings held for Supreme Court nominees always involved high theatre. Indeed, confirmation hearings did not use to exist at all. The first hearing occurred upon Justice Harlan Stone’s request in 1925. And hearings did not become commonplace until 1955.
Today is different, however, and Americans will certainly be hearing a lot about the qualifications and background of President Trump’s pick. But it’s worth taking a moment to consider how we got here, what the Supreme Court actually does, and how Congress should go about confirming its justices.
Alexander Hamilton famously described the Supreme Court as the “least dangerous branch.” This description seems quaint now as the Court routinely weighs in on the most pressing legal, political, and social issues of our time. But it’s important to remember that under the Constitution, the Supreme Court’s role is supposed to be interpreting the law, rather than making it. Thus, a nominee’s personal policy preferences should be irrelevant. The question is whether he or she will faithfully interpret the laws of the United States.
Since 1993, Supreme Court nominees have by and large adhered to what is known as the “Ginsburg Rule.” As then Senate Judiciary Chairmen Joe Biden put it, a nominee should not comment “about how he will decide any specific case that may come before h(im).”
This rule is derived from Canon 5 of the Model Code of Judicial Conduct which prohibits a potential judge from commenting regarding potential cases. It preserves judicial independency by requiring a nominee to refrain from making “pledges, promises or commitments” regarding cases, controversies, or issues likely to come before the judge that are inconsistent with impartial performance of a judge’s duty.
Justice Ginsburg invoked the rule in her introductory statement:
“A judge sworn to decide impartially can offer no forecast, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
And she made good on that promise. Justice Ginsburg declined to address approximately 30 questions, involving everything from the First Amendment, to the death penalty, to antitrust law. She said that asking for a signal on a potential case “is something you must never ask a judge to do.” And she stuck to her guns, stating that she could not answer a question regarding sexual orientation classification without “violating what (she) had said to be (her) rule about no hints, no forecasts, no previews.”
So, what is up for grabs? While questions about particular cases are rightly out-of-bounds, the people can and should be interested in the judicial philosophy of a nominee.
Is a nominee someone who feels bound by the text of a statute? Will the nominee look to the original meaning of the words written by the Founders? If not, then what sources will he or she consult? And is the judge a believer in a living, breathing constitution that is subject to alteration?
These distinctions matter. Unlike the common law judges of yesteryear England, the Founders never gave federal judges the power to “make law.” Rather, the authority of the federal courts is limited to deciding cases and controversies — to interpreting the law that made by the elected branches. To be sure, difficult questions of interpretation sometimes exist.
But when courts stray beyond the text and original meaning of a law, they short-circuit the democratic process, taking from the people the right of self-governance. As the late Justice Scalia put it: “the practice of constitutional revision by nine unelected judges robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”
It is particularly fitting in this case that Judge Gorsuch shares the same judicial philosophy as the late Justice Scalia. As the new nominee stated in a memorial tribute:
“(J)udges should instead strive (if humanly and so imperfectly) to apply the law as it is …, not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best.”
The confirmation hearings have yet to begin. But the Court of public opinion is already in full session.
The forthcoming confirmation hearings are good reasons to reexamine our view of the Supreme Court and its powers and prerogatives. For those who believe in democracy — meaning governance by elected representatives — there should be widespread agreement on the Supreme Court’s limited role.
And this means that the confirmation hearings should be about how the nominee approaches judging, not about how he might rule in any particular case.