Ghosts of hearings past

C-SPAN is hardly known for its dramatic programming, but viewers this week were treated with coverage of the confirmation hearings of Supreme Court nominee Neil Gorsuch.

By most objective accounts, Gorsuch sailed through the hearings with an affable and unflappable demeanor to complement his considerable and demonstrable legal qualifications.

He’s now virtually a cinch to be given a SCOTUS robe and seat, and American jurisprudence will be the better for it—despite wailing to the contrary that almost literally was plucked from the “sky is falling” worries Democrats expressed 30 years ago at the Antonin Scalia hearings.

In a play off the old advertising campaign “Is it live, or is it Memorex?” which showed an Ella Fitzgerald high note shattering a wine glass, guess whether the following statement was uttered this week or in 1986: “There have been at least some reports that [overturning Roe v. Wade] was one of the considerations in your nomination.”

If your gut told you that the more things change, the more they stay the same, congratulations! That sentence is straight from the Scalia hearing transcripts.

Here’s the exchange that preceded it, led by Sen. Edward Kennedy, who barely muttered a greeting before tossing his first mortar: “if you were confirmed, do you expect to overrule the Roe v. Wade?”

A clearly taken aback Scalia replied, “Excuse me?”

The Massachusetts senator rephrased slightly. “Do you expect to overrule the Roe v. Wade Supreme Court Decision if you are confirmed?” he asked.

Like most nominees before and since, Scalia explained it would be improper to answer that question, and elaborated. “Let us assume that I have people before me arguing to do it or not to do it,” he said. “I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that.

“I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter,” Scalia said.

It is clearly unwise to prejudge publicly any case that might ultimately come before the court, especially one so contentiously debated in legal contexts. But special interests consider wisdom and common sense mortal enemies if either threatens their agenda.

So lobby servant Kennedy pressed on. “Do you believe in [the concept of stare decisis]? What is it going to take to overrule an existing Supreme Court decision?” he asked.

“As you know, Senator,” Scalia answered, “they are sometimes overruled.”

“I am interested in your view,” Kennedy continued.

“My view is that they are sometimes overruled,” Scalia said, and then added, “I will not say I will never overrule prior Supreme Court precedent.”

Thirty years hence, the nominee selected to succeed Scalia faced the same opposition from the same special interest, which hurled the same mud hoping to smear another imminently qualified jurist. But Gorsuch was definitive and defiant about any expressed White House litmus test regarding abortion tainting his integrity as a nominee.

Had he been asked by President Donald Trump to overturn Roe v. Wade, Gorsuch said, “I would have walked out the door.”

Sen. Kennedy is long gone, but some faces still have recurring roles in this three-decades-later sequel.

Sen. Patrick Leahy posited this contemplative query to Scalia in 1986: “Does the word ‘justice’ have content to you?”

In 2017, here’s one of his probing questions to Gorsuch: “Would the president have the authority to ban all Jews from America?”

Then-Sen. Joe Biden was also in the judiciary committee hearings for Scalia, asking about whether the nominee subscribed to the view of the Constitution as a “living” document.

“What I think,” Scalia responded, “is that the Constitution is obviously not meant to be evolvable so easily that in effect a court of nine judges can treat it as though it is a bring-along-with-me statute and fill it up with whatever content the current times seem to require.”

And yet judicial activism produces that precise result, which is both undemocratic and divisive. It’s why partisans can praise Roe v. Wade as “settled law” in one breath and deny Citizens United as such in the next.

Sen. Diane Feinstein, in trying to pry an abortion-rights answer out of Gorsuch, went so far as to worry aloud that the “law” as it exists “could be struck down with one decision.” Her fears exist because that “law” was foisted on the nation with one decision, rather than legislated through the democratic process or added to the Constitution in the amendment process.

Special interests that want to live by the gavel can also die by the gavel. After all these decades, Roe v. Wade‘s legal doctrine remains unsettled for the very reason that it was poorly adjudicated to begin with.

As Scalia often opined, justices are poorly equipped to be lawmakers. We are fortunate that lawmakers acting as mouthpieces for special interests in confirmation hearings are equally unfit to be Supreme Court justices.


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