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.


Supreme misrepresentation

Though June 29, 2010, was a milestone of major significance for the Supreme Court of the United States, it went unnoticed by most of the 300 million citizens who make up We the People.

When Justice John Paul Stevens retired on that day, it marked the first time in American history that the highest court in the land was without a single Christian Protestant member.

Protestants have historically been, and are still today, the largest single religious group in the United States. That cultural reality was reflected in the Supreme Court for more than two centuries. From its inception in 1789 until 1994, there had never been fewer than six Protestant justices on the court. For the first 100 years, the court was almost all Protestant; over the next 100 it generally mirrored the Protestant population as a percentage.

But within a mere 16 years—between 1994 and 2010—the Supreme Court became supremely misrepresentative. Today we’re still a nation in which half the population identifies itself as Protestant, yet Protestants have been nonexistent on the court for six years.

Only one in five Americans is a Catholic, but five of eight Supreme Court justices are (it was six before Antonin Scalia died).

And while followers of Judaism account for two percent of the population, they make up 37 percent of the Court, and if the nomination of Merrick Garland is approved, that would grow to 44 percent.

There is, of course, no religious test for Supreme Court justices. But the lack of legal requirements doesn’t invalidate common sense, or concern over a shift that has transpired with breathtaking rapidity.

Considerations involving religious representation mustn’t be confused with prejudice. It’s not discriminatory to expect the nation’s highest judicial panel to generally reflect the faiths represented in the population. Indeed, the government (the president appoints justices, the Senate confirms them) has been harshly criticized in the past for not including members of minority religions.

Following that logic, more criticism is warranted for excluding members from the most populous religious denominations.

In what might be considered one of his last testaments, Justice Scalia broached the topic just months before his untimely death.

Dissenting in Obergefell v. Hodges, Scalia slammed the majority for exerting its “reasoned judgment” in place of legislative or constitutional documentation regarding same-sex marriages.

In the closing paragraphs of his dissent, he boldly condemned the lack of credentials for court justices to impose their reasoning or judgment on social rather than legal issues.

The majority opinion wrote that the founders and early architects of the 14th Amendment couldn’t imagine “the extent of Freedom in all its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning.”

Scalia’s scorn was self-evident: “The ‘we,’ needless to say, is the nine of us.”

He then launched into a brief lecture on how unqualified the nine unelected lawyers in black Supreme Court robes are to weigh in on social policy issues, instead of sticking to strictly legal points. He pointed out that the justices look nothing like America. They’re wealthier, including a majority with assets in the millions. All but one graduated from either Harvard or Yale. Half are from one city—New York. And he noted the lack of a single Protestant despite the court’s history and the nation’s own demographics.

In other words, Supreme Court justices are probably the last people you’d want to ask for advice on about average, normal, everyday, social or community issues. That’s not their world and never has been.

“The strikingly unrepresentative character of the body voting on today’s social upheaval would be irrelevant if they were functioning as judges,” Scalia wrote, “answering the legal question whether the American people had ever ratified a constitutional provision that was understood to proscribe the traditional definition of marriage.”

But their disconnect with the citizenry at large becomes exceedingly relevant when they substitute their view for the rule of law.

“They have discovered in the 14th Amendment a ‘fundamental right’ overlooked by every person alive at the time of ratification, and almost everyone else in the time since,” he wrote.

“They see what lesser legal minds—minds like Thomas Cooley, John Marshall Harlan, Oliver Wendell Holmes Jr., Learned Hand, Louis Brandeis, William Howard Taft, Benjamin Cardozo, Hugo Black, Felix Frankfurter, Robert Jackson, and Henry Friendly—could not.”

It’s true that Supreme Court justices must be meritorious as legal experts. But the decision inObergefell went unapologetically beyond Constitutional law, asserting authority to rule on abstract issues such as “dignity.”

Scalia’s issue wasn’t with the result in the case, but the method used to arrive at it. “[I]t is not of special importance to me what the law says about marriage,” he wrote. “It is of overwhelming importance, however, who it is that rules me.”

Demographics on the court shouldn’t matter as much as legal qualifications, except when justices start substituting “We the Judiciary” for “We the People” and end democratic debate among the states with subjective social rulings. In that case—and it’s a disturbing trend—Supreme Court nominees need to be more representative religiously, geographically and educationally.