With speculation that a conservative majority may result in Roe v. Wade being overturned, all eyes are on what Judge Brett Kavanaugh has to say about the key abortion decision. His upcoming Senate confirmation hearing, however, may be very anti-climactic. We largely know where everyone in the Senate stands on the Supreme Court nominee, and Kavanaugh is unlikely to divulge any earth-shattering information about his ideological leanings.
The Ginsburg Standard
In recent years, Supreme Court nominees have become less forthcoming when testifying before the Senate. Last time around, Justice Neil Gorsuch refused to weigh in on Brown vs. Board of Education.
There is even a term for it—the Ginsburg standard. The name references a response provided by Justice Ruth Bader Ginsburg during her confirmation hearing.
She said: “A judge sworn to decide impartially can offer no forecasts, 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.”
Justice Ginsburg’s quote doesn’t tell the whole story. And she didn’t address whether potential justices should explain how they might have voted on landmark cases that have already been decided. Given the stakes, the nomination of Kavanaugh has reignited the debate over how much information potential Supreme Court justices should be required to disclose.
Constitution’s Appointment Clause
The U.S. Constitution is silent on the issue.
It simply provides that the president must submit nominations to the Senate for its advice and consent. The “Appointments Clause” set forth in Article II, Section 2, clause 2 specifically states that the president “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… Judges of the Supreme Court.”
While the Constitution does not dictate the criteria for selecting a Supreme Court justice, the procedure is a little clearer.
Once the president names a nominee, the Senate Judiciary Committee takes the nomination under consideration. After performing initial research, the committee holds hearings during which the nominee provides testimony and responds to questions from members of the panel. The Senate Judiciary Committee then votes to determine whether to recommend the nomination to the full Senate.
If the committee votes in favor of the nominee, the Senate majority leader determines whether and when to schedule the nomination for floor consideration. After additional debate, the full Senate votes on the nomination. In order to win confirmation, the nominee must be approved by a majority of the Senate.
Arguments in Favor of Disclosure
In refusing to answer questions about their constitutional views on certain issues, recent Supreme Court nominees on both sides of the political spectrum have argued that their responses would compromise the constitutional independence of the judiciary. However, not everyone shares this view, particularly when it comes to how Supreme Court nominees would have voted in cases that the Supreme Court has already decided.
Conservative Chief Justice William H. Rehnquist was a vocal proponent of asking Supreme Court nominees the tough questions. “Proof that a justice’s mind at the time he joined the court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias,” he wrote.
Many constitutional scholars also agree.
In a 2006 article in the Yale Law Journal, professors Robert Post and Reva Siegel argued that asking nominees questions about previously decided cases “neither compromise[s] the independence of the judiciary nor politicize[s] the rule of law, but instead serve important structural values.” They further maintained that these questions “…serve the democratic design of the confirmation process by revealing the operational content of nominees’ constitutional commitments. Asking nominees to disclose how they would have decided well-known Supreme Court cases prevents nominees from explaining their constitutional commitments in terms of abstract principles like ‘liberty’ or ‘equality,’ whose practical significance in particular cases and contested areas of constitutional law is unknown.”
More recently, Erwin Chemerinsky, dean of the University of California at Berkeley School of Law, wrote an op-ed piece in the Los Angeles Times calling on senators exercise their power and insist that Kavanaugh answer questions about his views on crucial constitutional issues. Chemerinsky argues that none of the reasons for refusing to answer hold merit. He first notes that no one believes 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. As Chemerinsky notes, it is equally ridiculous to assert that potential justices have no opinions on those matters.
He writes:
“When David 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, Chemerinsky dismisses the argument 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 Thomas would stand on a blanket overrule of Roe v. Wade, for example, is no secret,” he writes. “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.”
When Kavanaugh appears before the Senate, its members will be ready to pose some tough questions. It’s less clear, however, what happens if the nominee refuses to answer.
Donald Scarinci is a managing partner at Scarinci Hollenbeck—read his full bio here.
