In January 2006, I testified before the Senate Judiciary Committee against the confirmation of Samuel A. Alito Jr. to the Supreme Court. At a break, then-Sen. Joe Biden came up to me and said it was all an exercise in Kabuki theater. He said everyone in the room knew that Alito was going to be a very conservative justice. He said the Republicans were pretending that he was open-minded and had no ideology, while the Democrats were trying to ask questions to trip Alito up and he was too smart for that.
I think we are likely to see another exercise in Kabuki theater with the Brett Kavanaugh hearings unless the senators exercise their power and insist that the judge answer questions about his views on crucial constitutional issues. A myth has developed that nominees should be able to refuse to answer such inquiries. Neil M. Gorsuch, for example, refused even to express his views on Brown v. Board of Education.
There is no basis in the Constitution or law for the idea that nominees to the Supreme Court should be given a free pass on explaining their views. The idea that a nominee may refuse to answer questions rests on three premises, none of which have merit.
One premise is that a justice’s views on issues such as abortion, affirmative action, separation of church and state, and the death penalty have nothing to do with how he or she is likely to vote on the court. No one believes that. Supreme Court justices have enormous discretion in interpreting the Constitution, and how they vote is very much a product of their values and ideology. As Biden predicted in 2006, Samuel Alito has voted with the conservatives in every case since joining the high court, just as Sonia Sotomayor has been predictably with the liberals.
A second justification is that the nominee doesn’t have views on these issues. When David H. Souter and Clarence Thomas went before the Senate Judiciary Committee for their confirmation hearings, each denied having a position pro or con on Roe v. Wade. Patricia Ireland, then the president of the National Organization for Women, later quipped that there were only two adults in the United States without thoughts on abortion and they were both on the Supreme Court. Souter’s and Thomas’ denials were simply not credible.
Finally, there’s the matter of bias. This argument holds that it is inappropriate for nominees to state their views because they will later be seen as prejudiced if the matter comes before them. The flaw in this argument has already been stated: We know the justices’ views – in general – before a case is heard. Where Ruth Bader Ginsburg and Clarence Thomas would stand on a blanket overrule of Roe v. Wade, for example, is no secret. Yet no one suggests that our knowledge about their general views and their jurisprudence as revealed in various decisions makes them impermissibly biased. Besides, pretending that a justice has no biases does not make it so.
What a nominee cannot answer, and should not be asked, is exactly how he or she will vote in the future. That will depend on the particulars of each case and the briefs and arguments. But it is appropriate to ask Kavanaugh how he would have voted had he been on the court when Roe v. Wade was decided or when Grutter v. Bollinger (which upheld university affirmative action programs) was decided, or when the court handed down other major rulings.
If Kavanaugh refuses to answer, or if his answers are not credible, it is completely appropriate for the Senate to deny him confirmation. President Trump has made clear that he picked Kavanaugh for his conservative views. It is equally appropriate for the Senate to deny confirmation because of those views or because of Kavanaugh’s refusal to answer questions.
The framers of the Constitution intentionally did not vest in the president the sole ability to pick Supreme Court justices. The Senate must approve a nominee. For the Senate to exercise its constitutional role it must insist on answers to its questions. It is time to end the Kabuki theater.
Erwin Chemerinsky is dean and Jesse H. Choper Distinguished Professor of Law at UC Berkeley School of Law.
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