It’s a technique that Carrie Severino of the Judicial Crisis Network said Supreme Court nominee Ruth Bader Ginsburg helped inaugurate during her confirmation hearing in 1993: She repeatedly said she couldn’t comment on an issue, since it may come up before the court.
Severino, the Network’s chief counsel and policy analyst, said that line has been a favorite of nominees since, but it ultimately handicaps the nomination process because it reduces the content they can provide with their answers at their hearings.
“We don’t gain a whole lot from the current process,” Severino said.
Severino said the trend for nominees at their Senate confirmation hearings is to avoid expressing any liberal interpretation of constitutional law (such as viewing the Constitution as a text you can add meaning to rather than taking the text for itself) that they may have embraced in the past.
“Whoever’s prepping these candidates knows that you’re not allowed to say in a confirmation hearing what you actually believe if it’s a liberal position,” Severino said. “The liberal positions are not confirmable.”
Two recent examples are the 2009 confirmation of Supreme Court Justice Sonia Sotomayor and hearings last week for Circuit Court of Appeals candidate Goodwin Liu. Severino said both changed their tune during the nomination process.
Sotomayor came under criticism during her confirmation process for a 2001 statement she made, when she said: “A wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.” During her confirmation, Sotomayor backed off using the empathy line.
Liu who is facing scrutiny during his confirmation for the 9th U.S. Circuit Court of Appeals – Sen. Jeff Sessions described his record to Politico as “the very vanguard of what I would call intellectual judicial activism” — similarly downplayed his previous positions.
“If the public had read the kinds of things he’s written and then heard him speak on Friday, people would be outraged," Severino said. “It almost doesn’t matter what the nominee has said before, they’re going to parrot the same line that they know the American people want to hear.”
Severino said, “I think we’ll very likely see more ‘confirmation conversions’ to come.”
Severino said it’s hard to know which names to take seriously at this point on the selection of a replacement for retiring Supreme Court Justice John Paul Stevens.
At least one name that’s been tossed around, State Department legal adviser Harold Koh, is unconfirmable in her opinion. She said that including names like Koh on the list of candidates would inoculate the eventual nominee by making them appear moderate in comparison.
The nominee will likely be grilled about legislation passed during the Obama Administration, such as the government bailouts and healthcare, Severino said. The challenge for President Obama is to find someone he can count on to take a hard-left approach on the court but who can be painted as a moderate during the hearings.
When given the names of three short-list candidates for the court — Solicitor General Elena Kagan, Judge Diane Wood, and Judge Merrrick Garland — Severino said Wood has a similar paper trail to that of Liu. Wood was twice overturned by the Supreme Court on an abortion protesters case, and Severino says her opinions on the abortion issue are the most extreme out of all the candidates. Garland, despite a long paper trail, hasn’t had to deal with as many hot button cultural issues and would be easier to confirm, Severino said.
Severino said Kagan created controversy by joining an amicus brief backing the right of law schools to refuse to allow military recruiters on their campuses. But she added that Kagan is a skilled politician who has very little in terms of a public record.
“She’s worked in the Clinton White House, she’s spent years in the very political environment of law school academia at Chicago and Harvard, and now she’s in the Obama Administration, and all that time she has very carefully avoided taking a position on almost any hot-button issue. How you do that is really a wonder,” Severino said. “I think she’s always known that the Supreme Court was potentially in her future, so she’s purposely kept herself a little hard to read.”
Interestingly, Kagan has argued that judges should be more responsive – unlike Ginsburg’s tactic – during the confirmation process.