The Yale Law Journal


Learning What From a Nominee's Views of Past Court Rulings?

01 Sep 2006

A Response To

Reva Siegel and Robert Post have argued convincingly that constitutional democracy could be advanced while preserving judicial independence by the practice of asking Supreme Court nominees how they would have ruled in already decided cases—and by treating a refusal to respond to such inquiry as reason to deny confirmation. Their essay elegantly dispatches the principal objections that have, seemingly more as a matter of habit than as a result of reflection, been advanced against this line of inquiry. Thus they quickly dispose of concerns that rest on an elementary confusion between saying what one would have done in the past and promising what one will do in the future. They argue that only a mock confusion could survive the now routine practice in which senators preface their questions with the assurance that they are not asking nominees to make any commitments about how they will vote on particular matters—other than, of course, the usual commitment to decide cases in accord with their best understanding of what the applicable law requires and to approach each case fairly and with an open mind.

One can expect nominees to protest, whenever they find a line of questions uncomfortable, that asking them to state their present views about matters that could become relevant to cases they might have to decide is tantamount to extracting commitments to decide those cases in accord with those stated views. But that sort of protest should be easy to expose as baseless, and it should be easy to explain as well why taking it seriously would mean asking no relevant questions at all. To the further objection that it betrays a misunderstanding of the judicial function for us to expect nominees to answer purely hypothetical questions framed outside the context of actual cases or controversies and without the benefit of briefs or oral arguments, the essay’s response is, of course, that the questions proposed deal with actual cases in which all the briefs and the argument tapes or transcripts are publicly available.

So far so good. The rub arises whenever the proposed questions ask the nominee in effect to play the role of a “tenth justice” transported into the past to say what vote he or she would have cast in the circumstances presented. In that event, the nominee can simply respond that a crucial element is missing from the scenario. Briefing and oral argument there may have been, and the historical records of these may have been fully preserved. But there is a vital difference, as many a nominee has emphasized, between the role of a judge in adjudicating an actual controversy under applicable law, and the role of a lawmaker or philosopher in opining about how a matter ought to be resolved in a world where the law has yet to be made.

The judge’s role is intentionally circumscribed by the experience of participating in a real-time decision—knowing that actual lives will be affected by what the judge rules, and remaining open, if the judge is worthy of the name, to persuasion by the advocates for each side and by the judge’s colleagues on the bench. Indeed, the process of intrajudicial persuasion, which runs both to the judge from colleagues and from the judge to those same colleagues, is an essential ingredient of the judicial role in a multimember tribunal like the United States Supreme Court. And it is an ingredient that may well make it impossible to say just how the nominee would have resolved the questions presented in a prior case. For what a colleague might have said in response to a point the nominee would have been inclined to make, how that response might have reshaped the nominee’s views, how those views might in turn have reoriented the positions others on the bench took at the time, even how the advocates might have responded to questions the nominee might have put to them, remain locked in the vault of “might-have-beens.” Lacking the key to this vault, the nominee is on safe ground in describing even the most concrete inquiry into how he or she “would have” voted in some decided matter as hypothetical after all—and, in the end, as unresolvable.

Even when this line of thought seems unconvincing, as it might when the prior decisions one is discussing addressed questions that have come to seem too basic for their answers to depend on such nuances—questions to which the “right” answers seem obvious to large sectors of the electorate or of the legal academy (with a certitude that need not prevent answers that some deem plainly right from striking others as plainly wrong)—a fundamental difficulty with focusing on how a nominee would have voted in some prior case is the increasingly familiar observation that believing a case to have been wrongly decided is not tantamount to believing it should be overruled.

The reason, of course, is that very widely accepted principles of stare decisis and altogether uncontroversial concerns for constitutional stability and institutional continuity—concerns voiced in a verbally similar form by nominees of all theoretical persuasions and ideological stripes—enable a nominee who would certainly have dissented from a given decision to say quite truthfully that how he or she would resolve a future controversy bringing the soundness of that decision into play would be a function not only of how the nominee would have decided the case initially but also of such considerations as how deeply the decision would by that time have become embedded in the culture, what expectations would be upset by overturning it, what the course of intervening decisions would have been, precisely how the issue would be presented in that future controversy, and what arguments the parties’ lawyers and the nominee’s judicial colleagues would make. The upshot is to leave everyone, including the bewildered nominee, in a state of genuine uncertainty about exactly what the nominee would do.

But those matters aren’t decisive unless one is putting questions to the nominee in an attempt to read the wrong crystal ball. If the aim of the exercise is to predict whether the nominee would indeed vote to overturn a given decision that is of special concern at the time of the nomination, then the inability to make that prediction based on how the nominee would have voted in the first instance is a major stumbling block. But in most instances, that prediction is beside the point and is indeed a distraction from the considerations that ought in fact to be paramount in the minds of the senators who will vote on confirmation and of the people those senators represent.

To take only the most commonly named target of this basically misguided but nearly universal form of inquiry, far too much ink has been spilled on the easily sloganized question: “Would Nominee X vote to overturn Roe v. Wade?” Consider a nominee who would have dissented in Roe not on the basis that the majority had struck the wrong balance between the woman’s liberty and the rights of the unborn (or between that liberty and the state’s “interest” in protecting the unborn), or even on the basis that the majority should have left the states a wider berth in striking that balance, but on the much more fundamental (and more broadly relevant) basis that it is simply wrong for judges to use the “liberty” clause to protect fundamental personal rights of privacy, autonomy, or dignity beyond the rights specifically enumerated in the Constitution’s text. The clear and present danger such a nominee poses is not that his confirmation would cause the skies to fall in a single dramatic gesture that proclaims the demise of Roe with an overruling opinion that everyone knows would trigger a political backlash of realignment-generating magnitude. The danger, rather, is that confirming such a nominee—even if the nominee sincerely voices deep respect for the value of precedent—would contribute to the gradual erosion and eventual eclipse of reproductive freedom as a meaningfully protected constitutional right and, looking to the horizon beyond today’s abortion wars, would leave largely undefended from those who wield government power in the name of the people at any given time the many other facets of personal privacy and equal dignity that emerging technologies of cloning, genetic engineering, organ harvesting, brain manipulation and managed death, to name but a few examples, would increasingly implicate.

Or consider a nominee who would have dissented in Morrison v. Olson not on the basis of a fine-grained disagreement with the particular balance the majority struck in upholding Congress’s Independent Counsel Act but on the basis of a full-throated embrace of the principle underlying Justice Scalia’s dissent in that case: that every officer and agency involved in “executing” the laws made by Congress must be politically answerable to, and thus removable at will by, the President. The danger such a nominee poses is not that his confirmation would herald the imminent overruling of Morrison and the concomitant invalidation of (heaven forbid) a newly resurrected Independent Counsel Act. Rather, the danger is that confirming such a nominee, however sincerely he articulates a respect for “settled law,” would expose modern government to the harsh consequences of the “unitary executive” theory underlying that solo Scalia dissent—a theory whose application would cut down, twig by twig, the independent branches essential to the disinterested administration of power in managing the economy and protecting consumers and the environment.

On this understanding of the dangers against which the proposed lines of questions are to be directed, most of the problems identified here evaporate, for one would be trying to determine not how the nominee would have voted in one or another case but what the nominee now thinks about the votes that various justices cast and about the reasoning they advanced in their respective opinions. And if one is thereby trying not to extrapolate how the nominee would probably vote on the proposed overruling of various decisions but to gauge how the nominee in fact approaches matters of personal freedom and dignity and of congressional or judicial control of presidential power and its excesses, then no line of questions could be more appropriate.

Laurence H. Tribe is Carl M. Loeb University Professor and Professor of Constitutional Law, Harvard University.

Preferred Citation: Laurence H. Tribe, Learning What From a Nominee's Views of Past Court Rulings?, Yale L.J. (The Pocket Part), Jan. 2006,