The Less Said the Better?

Dr. Malcolm Cross

The purpose of a job interview should be to acquire enough information to determine whether a particular candidate is right for a particular job.  Yet as the Supreme Court has grown in power, nominees are more likely to win Senate confirmation if they say less, rather than more, about their judicial philosophy.  How can it be healthy to invest so much power in a Supreme Court Justice if so little can be learned about how he or she will actually interpret the law?

The hearings on Amy Coney Barrett’s nomination to the Supreme Court have ended.  Perhaps the most striking thing about the hearings is how little we learned about Judge Barrett that we didn’t already know from the widespread news coverage which her nomination elicited.  Going into the hearings we knew she was deeply religious, superbly educated, a wife, a mother of seven, a distinguished former law school professor, a recently appointed appellate court judge, and a philosophical originalist for purposes of legal and constitutional interpretation.  But what implications would her philosophy have for the deciding of actual cases that might come before the court?  We can only speculate, because she wouldn’t say.

The official reason for Judge Barrett’s silence is that she didn’t want to comment on issues likely to be adjudicated because she would otherwise have to recuse herself from hearing relevant cases if and when they should be brought before the Supreme Court during her tenure.  But the real reason is that there’s no reward for candor before the Senate Judiciary Committee.  

Consider the case of Judge Robert Bork, nominated for a Supreme Court justiceship by President Reagan in 1987.  Nobody was more open, honest, thorough, or candid in discussing his philosophy and its practical application than Judge Bork, then considered America’s leading judicial originalist.  For his candor Judge Bork was rewarded with rejection.  Most Democrats, and several Republicans had found enough material in his testimony to conclude he should be kept off the Supreme Court lest he help it make public policy decisions a majority of the Senate did not want.

Since Judge Bork’s defeat, most Supreme Court nominees have followed the practice made famous by Justice Ginsburg:  They’ve refused to discuss past cases and issues for the reasons cited by Judge Barrett.  Some nominees, including Justice Ginsburg herself, have won easy confirmation to the Supreme Court.  Others, including Clarence Thomas and Brett Kavanaugh, have won confirmation, but only by narrow margins after contentious hearings featuring serious but not provable charges of sexual misconduct against them.  But no nominee since Judge Bork has been rejected outright by the Senate.  The lesson is obvious:  Candor may lead to rejection, but its lack leads to success.

Whether this is good or bad is debatable.  Neither the President nor the Senate should try to wring from Supreme Court nominees promises to decide particular cases in particular ways.  Yet given the supreme importance of the Supreme Court’s decisions, it can be argued that we are entitled to more information about how potential justices will make those decisions.  

But it’s unlikely we’ll get such information in the near future, however justified its receipt may be.  Rather, we’ll continue to see nominations approved following little examination of the nominee’s approach to decision making, or we’ll see more spectacles similar to those involving Justices Thomas and Kavanaugh, or we’ll see more obsessions with such trivial issues as Judge Barrett’s clothing or religion, or the racial makeup of her children.

The only real uncertainty is that we’ll continue to learn less and less about the thinking of men and women whose decisions will affect us more and more.

Malcolm L. Cross has lived in Stephenville and taught politics and government at Tarleton since 1987. His political and civic activities include service on the Stephenville City Council (2000-2014) and on the Erath County Republican Executive Committee (1990 to the present).  He was Mayor Pro Tem of Stephenville from 2008 to 2014.  He is a member of St. Luke’s Episcopal Church and the Stephenville Rotary Club, and does volunteer work for the Boy Scouts of America. Views expressed in this column are his and do not reflect those of The Flash as a whole.

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