Avoid, Sidestep, Retreat: Justices’ Advice on Confirmation Tactics


WASHINGTON — As Judge Neil M. Gorsuch prepares for his Supreme Court confirmation hearing, which starts Monday, he might want to review advice, reflections and criticism from former nominees who successfully navigated the process.

In 1981, on his first day on the job, a 26-year-old Justice Department lawyer got a high-profile assignment. The lawyer, John G. Roberts Jr., was assigned to help prepare Sandra Day O’Connor, an Arizona judge nominated to the Supreme Court by President Ronald Reagan, for her confirmation hearing. Mr. Roberts provided her with draft answers to likely questions and helped quiz her at the mock hearings — sometimes called murder boards.

In a memorandum to a supervisor, Mr. Roberts described his philosophy:

“The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments.”

He took his own advice when he was nominated to be chief justice in 2005. He showed an easy familiarity with constitutional doctrine in his hearing, effortlessly summoning the names and summarizing the details of old decisions without indicating how they would apply to new controversies. Senator Richard J. Durbin, Democrat of Illinois, declared that Chief Justice Roberts “retired the trophy” for an outstanding performance by a judicial nominee.

Then a 35-year-old law professor at the University of Chicago, Elena Kagan described the brilliant evasions that Ruth Bader Ginsburg had executed at her 1993 confirmation hearing in a 1995 book review:

“Justice Ginsburg’s favored technique took the form of a pincer movement. When asked a specific question on a constitutional issue, Ginsburg replied that an answer might forecast a vote and thus contravene the norm of judicial impartiality. … But when asked a more general question, Ginsburg replied that a judge could deal in specifics only; abstractions, even hypotheticals, took the good judge beyond her calling.”

Some room may have remained in theory between these two responses; perhaps a senator could learn something about Justice Ginsburg’s legal views if he pitched his question at precisely the right level of generality. But in practice, the potential gap closed to a sliver given Ginsburg’s understanding of what counted as ‘too specific’ (roughly, anything that might have some bearing on a case that might some day come before the court) and what counted as ‘too general’ (roughly, anything else worthy of mention).”

In 2010, at her own confirmation hearing, Justice Kagan employed her own pincer movements, executed with good-natured self-awareness, to avoid answering both specific questions and general ones. Her 1995 essay had been critical of modern confirmation hearings, which she had called “a vapid and hollow charade.” At her hearing, she paid heed to another part of the essay. “The safest and surest route to the prize,” she wrote in 1995, “lay in alternating platitudinous statement and judicious silence.”

Justice Clarence Thomas’s 1991 confirmation hearing is best remembered for its second act, an examination of accusations of sexual harassment by Anita Hill, his former subordinate at the Department of Education and the Equal Employment Opportunity Commission, which he ran from 1982 to 1990.

But the first stage of the hearing, which focused on his qualifications and views, was also an ordeal, Justice Thomas wrote in his 2007 memoir, “My Grandfather’s Son.” Democratic senators, he wrote, were determined to find out what he thought about Roe v. Wade, the 1973 decision that established a constitutional right to abortion, and other cases.

“Each day I left the caucus room tired, tormented and anxious. … My opponents were armed with long lists of trick questions prepared by law professors and activists; I, on the other hand, had spent most of the preceding decade running a federal agency instead of studying two centuries’ worth of Supreme Court decisions.”

“My enemies weren’t looking for open-minded justices. All they cared about was keeping anyone off the Supreme Court who might vote to reverse Roe or water it down. As far as they were concerned, my open-mindedness was a disadvantage, not a qualification.”

A year later, Justice Thomas voted to overturn Roe. “By then I’d had ample time to study Roe in detail, and concluded that it was wrongly decided and should now be overruled,” he wrote in his memoir.

In 1959, as a 35-year-old lawyer, William H. Rehnquist was harshly critical of the Senate for its superficial questioning of a recent nominee, Justice Charles Evans Whittaker, in an article in The Harvard Law Record.

“The discussion of the new justice on the floor of the Senate succeeded in adducing only the following facts: (a) proceeds from skunk trapping in rural Kansas assisted him in obtaining his early education; (b) he was both fair and able as a judge of the lower federal courts; (c) he was the first Missourian ever appointed to the Supreme Court; (d) since he had been born in Kansas but now resided in Missouri, his nomination honored two states.”

“What could have been more important to the Senate than Mr. Justice Whittaker’s views on equal protection and due process?”

At his own first confirmation hearing in 1971, to become an associate justice, Judge Rehnquist retreated.

“I think I did not fully appreciate the difficulty of the position that the nominee is in,” he said. “I say that not entirely facetiously, because the nominee is in an extraordinarily difficult position. He cannot answer a question which would try to engage him in predictions as to what he would do on a specific fact situation or a particular doctrine after it reaches the court.”

Chief Justice Rehnquist, who died in 2005, took much the same approach at his 1986 confirmation hearing to become chief justice. “I really had no idea what the problems confronting a nominee were then,” he said of his 1959 article.



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