This week, the public is again witnessing the ritualistic exercise of the confirmation of a Supreme Court nominee. Of course, the outcome of Sonia Sotomayor’s hearings is not much in doubt. What has been conspicuously absent is substance. The vast majority of questions and answers remained on a shallow and predictable level where Sotomayor did little more than describe current doctrines and case law — avoiding disclosures of her own views. What is most striking is how Sotomayor’s statements were virtually identical to both her conservative and liberal predecessors.
The content-light character in these hearings is largely the product of the “Ginsburg rule” — named after Justice Ruth Bader Ginsburg, who refused to answer questions in her 1993 confirmation hearing about any case or matter upon which she might later vote. Backed by a Democratic majority, she simply declared, “I’m not going to give an advisory opinion on any specific scenario because as clear as it may seem to you, I think I have to avoid responding to hypotheticals because they may prove not to be so hypothetical.”
Later nominees for both parties have relied on the Ginsburg rule to turn the hearings into prolonged photo-ops for senators, who largely ask wafer-thin questions to solicit largely scripted answers.
The Ginsburg rule allows nominees to get by with meaningless sound bites that promise to respect precedent, the Framers and collegiality in general. This is akin to a surgeon general nominee explaining how veins bring blood throughout a body. It tells the public nothing about a nominee’s philosophy or purpose before giving her life tenure on the world’s most powerful court.
At the hearing in 2005 for John Roberts to become chief justice, the public heard animated discussions of the movie Doctor Zhivago and baseball analogies. Even Judge Sotomayor was asked on Tuesday about the national pastime.
The ‘Roe’ recital
This hearing has proved to be the same formulaic event. Reporters excitedly reported how Sotomayor expressed support for such doctrines as stare decisis to uphold precedent as though a nominee is likely to announce her intention to discard precedent and shape the law in her own image. These answers have been virtually identical for conservative and liberal justices. Consider the common question over the validity of Roe v. Wade and its successor decision in Planned Parenthood v. Casey upholding the right to an abortion. Here is Roberts’ response to the Roe question: “As of ’92 (in Casey), you have a reaffirmation of the central holding in Roe. That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles.” Here is Sotomayor’s response: “The court’s decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court. … That is the Supreme Court’s settled interpretation of what the core holding is and its reaffirmance of it.”
Ironically, while she skirted questions about Roe v. Wade during her confirmation, Ginsburg had no problem discussing her views once she was confirmed — despite the fact that she is likely to vote on these issues while on the court. Recently, Ginsburg said the Roe decision was predicated on a desire of some people to diminish “populations that we don’t want to have too many of” a curious claim that would have transformed her Senate hearing. Likewise, Justice Antonin Scalia has spoken on issues pending before the court such as detainee rights and separation of church and state. It appears that this information about a nominee’s views is improper only when it is the most relevant.
A nominee’s legal philosophy is rather difficult to understand without discussing legal doctrines. It is like watching The Sound of Music without any of the musical numbers. One can certainly appreciate the acting, but you can hardly get a feel for the movie without the songs.
Once you discard answers that simply restate basic legal doctrines or principles, little is revealed in these hearings that you could not find in a standard legal hornbook. The Sotomayor hearings have been long on insights into her personality and short on insights into her philosophy.
Yet, despite her moderate voting record, she has some worrisome rulings for civil libertarians. If Sotomayor votes the way she has on the 2nd Circuit, liberals could still lose ground on the Supreme Court over free speech, student rights and other core areas. Her life story will mean precious little to those people who might be stripped of rights or denied legal protections. For example, Sotomayor held in one case that schools could discipline students for statements that they made on a blog in their personal time. The impact of such a sweeping denial of free speech rights is hardly lessened with the consideration of Sotomayor’s life story.
Mum can’t be the word
There is a simple solution to returning substance to the confirmation process: End the Ginsburg rule by insisting that nominees answer questions about their specific views on constitutional rights. The only basis for refusing to be forthright should be limited to questions regarding how a nominee would vote on pending cases.
The current system works well for presidents, nominees and senators. It does little for the public or the system of justice. If you found yourself bored to tears during these hearings, don’t just change the channel — change the system and demand substance when we next select a justice for the United States Supreme Court.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University and a member of USA TODAY’s board of contributors.
July 16, 2009 — USA Today