Slow ball with Neil Gorsuch

As the confirmation hearings of Judge Neil Gorsuch come to a close, another raft of news articles, media stories and think pieces circulate about the non-event of hearings where senators try to exact from the nominee a preview of his or her position on the hot-button issues and the nominee responds with the "Ginsburg technique" - that (1) forecasting a vote on a case that might come before the Supreme Court would contravene judicial impartiality, and (2) a hypothetical or abstract answer would be in disregard of the judicial obligation to determine cases on the particular facts.

What was once decried as a charade lacking in any useful substance appears now to be resignedly accepted as a legitimate tactic employed by multiple Republican and Democratic nominees over decades.

The drama remaining in these proceedings consists of the skill by which a senator from the opposing party deploys what John Mortimer called the "slow approach, the line of questions the witness agrees to, until, in the end, she is fixed with the one she doesn't want to but may be left with no reasonable alternative." Mortimer, "Rumpole Rests His Case" (2003). For example, a nominee might be asked to agree that stare decisis is an important principle of jurisprudence, that stare decisis may gain strength from the passage of time during which precedent was reaffirmed in subsequent decisions, the passage of time may also reveal that the decision was not firmly grounded in the Constitution, and that stare decisis is not a sufficient basis to reaffirm a decision repugnant to the Constitution.

Using the slow approach, an adept senator (given a script by a talented staff) may induce a nominee to agree that Brown v. Board of Education correctly overturned Plessy v. Ferguson and then be asked to agree that if Roe v. Wade turned out to be likewise "repugnant" to the Constitution, the nominee would not hesitate to overturn that decision, notwithstanding the statements in Planned Parenthood v. Casey as to Roe's significance as long-standing precedent.

The brilliant minds who find themselves facing a lineup of senators at a confirmation hearing may have no trouble coming up with a plausible way of out of the trap (crudely drawn here), but the damage might also be done in terms of publicly revealing the views actually held by the nominee (of which no one at the hearing is actually in doubt). But this is "small ball" for aficionados. Also, the slow approach requires discipline and affords a senator none of the emotional satisfaction, for example, of denouncing Gorsuch for the humiliation of Judge Merrick Garland (in which Gorsuch played no part).

The question remains whether there is any corrective to a process so uninformative about what the nominee will add to the Supreme Court that some commentators have endorsed its value only as a civics lesson about the judicial system. One very modest proposal might be to lower the disingenuous factor introduced by Chief Justice John Roberts referring to his role as akin to an umpire calling balls and strikes. Unfortunately, Gorsuch is deploying a version of this with his comment that "[m]y job is to apply and enforce the law" in discussing District of Columbia v. Heller, a decision which re-shaped jurisprudence on the meaning of the Second Amendment. As that case illustrates as much as any, the role of a Supreme Court justice is to interpret the law and in the process essentially state what the law is. Judges are not legislators but, in a common law, constitutional justice system, they articulate the law. If the confirmation hearings are valuable as a civics lesson, it is no service to the public for the nominee to claim the contrary.

Worse, statements like these may unwittingly lure the nominee into a position that is not credible. It is one thing for a nominee to decline to state how he or she would rule on a controversial issue. It is another to thing to attempt to indicate that the nominee has no views on the issue and will bring none with him or her to the court.

President Donald J. Trump, who has no problem with candor, stated an intention to nominate Supreme Court justices who would overturn Roe. For purposes of confirmation hearings, assuming Gorsuch is such a nominee in the president's eyes, no one can blame him for his response that, if Trump had initiated a conversation on the subject, he, Judge Gorsuch, would have left the room.

However, to the extent Gorsuch has suggested that he is a simple servant of the law and has no conception where it should go vis à vis abortion rights, this position is hard or maybe impossible to credit under the circumstances. When it comes to Roe or any other decision that is anathema to conservatives, Gorsuch would do better to just stick to the Ginsburg technique and joust with the senators about precedent.