September 19, 2017

Private: 'Preposterous' Stonewalling By Judicial Nominees Makes a Mockery of Confirmation Hearings

Amy Coney Barrett, Chuck Schumer, Joan Larsen, John Kennedy, Sheldon Whitehouse

by Dan Froomkin

One of the most important duties of the Senate has become arguably the most hopeless exercise on Capitol Hill.

Confirmation hearings for top judicial posts – the primary mechanism by which the Senate exercises its constitutional responsibility to "advise and consent" on the appointment of judges – have become laugh-or-cry charades in which nominees endlessly repeat boilerplate explanations for why they can't answer even the most basic questions about their judicial philosophies.

And the Senators serve as nothing more than props.

At a recent Senate Judiciary Committee hearing, two Trump nominees to appellate courts -- Amy Barrett, a Notre Dame law professor, for the Seventh Circuit, and Michigan Supreme Court Justice Joan Larsen, for the Sixth – were showing how well they had been coached in saying nothing of substance.

But two Senators – one from stage left, and one from stage right – said they'd had about enough of the show.

Sen. Sheldon Whitehouse (D-R.I.) called the hearings "preposterous" because --  although Trump's judicial nominees clearly have to pass a number of litmus tests from Trump and interest groups -- Senators "get answers that are hopeless in terms of trying to give us any sense" of what their legal views are.

When Sen. John Kennedy's (R-La.) questions were sanctimoniously rebuffed, he insisted that judicial nominees should face – and answer – tough questions from both sides of the aisle. "It bothers me when nominees will not come before this committee and allow us to have a good faith discussion of the law and the reasoning and the analysis," he said.

Eric Segall, a Georgia State University law professor who has written extensively about the federal judiciary, said he thinks the root of the problem is "the myth, the falsity, the charade that judges are just applying the law and their personal views don't matter." By contrast, he said: "Their personal views are almost all that matters."

Senators should insist that nominees be more forthcoming. "There's no reason in law or logic that a nominee for a federal judgeship can't say what they think about a prior case. They should be required to do that. It's not that complicated," Segall said.

But Lawrence Baum, a political science professor at Ohio State University, said nominees know, "they are not going to fail to be confirmed unless something bad happens, and something bad could conceivably arise from something they say, so why take a chance? By evading questions, you can get it down to zero."

Senators, he said, "can be annoyed, but they're not going to vote against somebody out of annoyance.

The Kennedy-Whitehouse expressions of frustration were hardly the first time that senators have balked at the non-responsiveness of judicial nominees – from both parties.

Sen. Chuck Schumer (D-N.Y.) famously scolded Supreme Court Justice John Roberts during his 2005 confirmation hearing for not answering questions. "Why this room should be some kind of a cone of silence is beyond me," Schumer said.

So far in the Trump era, the judicial branch has asserted itself, overruling the president when he tried to violate constitutional principles, most notably by enjoining his proposed travel ban aimed at Muslim-majority countries.

But since the September 11, 2001, terror attacks, the executive branch has run rampant, Congress has rolled over – and now Trump is putting young hard-right nominees on the federal bench in record numbers.

And because they say nothing of substance during the confirmation process, neither the Senate nor the nation has the opportunity to hear their thinking about such central issues as liberty and tyranny – views that may not simply be a reflection of political differences, but possibly so extreme they are outside the American legal tradition.