Thursday, March 23, 2017

Judge Gorsuch Makes It "Personal"

by Michael Dorf


In the column, I more or less endorse the appraisal of then-Senator Joe Biden that these hearings are a "kabuki dance," citing, among other things, then-Professor Elena Kagan's description of one of the chief means by which nominees evade senators' questions as a "pincer movement": Specific questions are turned back because they could arise in litigation and so the nominee does not want to pre-judge them; abstract questions are rejected because they call for discussion of abstract principles outside the context of a concrete case and thus are beyond the judicial ken. I note that Judge Gorsuch has also used the familiar tactic of responding to a normative question--e.g., how should the case of A v. B. been decided?--with a descriptive answer--i.e., describing what the Supreme Court did in the case of A v. B.

My column nonetheless contends that the hearing serves an educational function for two reasons. First, much of what readers of this blog likely take for granted is news to the general public, and while the audience for the confirmation hearing is itself a highly self-selecting group, there are still things about the existing state of the law that they may be learning. Second, even Gorsuch's bland platitudes--like his repeated "No man is above the law"--are useful in the current environment, when we have a president who acts as though he believes himself to be above the law.

Now to what's novel. I have paid pretty close attention to every confirmation hearing in the last 30 years. During that time, I've observed the development of something like a confirmation script. What I describe above from Gorsuch follows that script closely. But I want to give credit to Gorsuch for having invented--or at least perfected--a mostly new evasive maneuver: the expansion of the concept of "personal" views.

In numerous exchanges with senators, Judge Gorsuch offered as a reason why he could not answer a specific question--even with respect to issues not likely to come directly before the Court--that to provide such an answer would be to give a mere "personal" view, which the public and potential litigants might then use to draw the false inference that his personal view about the subject would forecast how he would resolve a later legal controversy.

This is a peculiar use of the notion of a personal view, or more charitably, one that unhelpfully runs together a number of distinct ideas. I can illustrate with respect to same-sex marriage, as on Tuesday afternoon, Judge Gorsuch invoked the personal-views idea to duck questions from Senator Franken about Gorsuch's involvement in the 2004 campaign to re-elect President Bush in Ohio, where an anti-SSM initiative was on the ballot. Gorsuch ducked the question with the "personal" excuse. What might that have meant? Consider the following questions:

1) At the level of interpersonal relations, how do you feel about same-sex couples who marry? E.g., would you attend the same-sex wedding of the son or daughter of a close personal friend? Would you attend it gladly or grudgingly?

2) As a policy matter, do you support same-sex marriage, so that if you were a legislator before the Supreme Court decided Obergefell, would you have voted for statutory recognition of marriage equality?

3) Do you think Obergefell was right as an original matter?

4) Do you think Obergefell should be overruled?

Now there are some decent arguments for a set of norms that obligates a SCOTUS nominee to answer all of these questions. Even with respect to a direct forecast question like 4), a nominee could say something like this: If that issue were to come before the Court, I would pay careful attention to all of the arguments, but my present disposition is that the case [should or should not] be overruled.

Nonetheless, we pretty clearly have a set of norms that allows--indeed apparently requires--nominees to avoid questions in the form of 4).

We also have a set of norms that permits nominees to duck questions like 3), although there was a time not too long ago when nominees would be willing to say that some case that is settled--Marbury v. Madison, say, or Brown v. Board--was rightly decided as an original matter. Indeed, it used to be something of a requirement that a nominee say that sort of thing with respect to canonical cases. But Judge Gorsuch hesitated to say that even cases that are generally regarded as settled were rightly decided. In response to Franken with respect to Obergefell, Gorsuch agreed with the characterization of the issue as settled, but implied that because there are remaining issues to be litigated about the scope of Obergefell, he could not say whether he thought it was rightly decided as an original matter. This strikes me as unpersuasive but well within the norm of the sort of ducking one sees from SCOTUS nominees.

But what is the justification for a nominee's refusal to state his policy views along the lines of question 2)? The answer Judge Gorsuch gave is that policy and law are separate matters. Whether he would vote for a statutory right to X on policy grounds, we are meant to believe, has nothing to do with whether he would rule that there is a constitutional right to X. But the naive public who think that law has some connection to policy would be misled into thinking that the policy view forecasts the legal view.

This accusation of naiveté appears to run in the wrong direction. No self-respecting judge in our legal system thinks that the fact that he favors some outcome on policy grounds is sufficient grounds for saying that the current law (whether a statute, the Constitution, or something else) already requires that result, but at least where the law is unclear and reasonable arguments are advanced both for and against the proposition that the existing law requires some result, whether a particular judge favors or opposes that result on policy grounds undoubtedly has some positive correlation with how the judge will decide the legal issue.

Judge Gorsuch nonetheless succeeded in ducking all manner of questions about not only policy but also questions about law by trading on a particularly slippery use of the notion of a "personal" opinion. I can illustrate with an analogy.

Suppose that Sally is the CEO of a car company. She is trying to decide whether to invest more in manufacturing sports cars or SUVs. Sally personally drives a sports car because she finds that it's way more fun than an SUV, but the data show that SUV sales and revenue are growing while sports car sales and revenue are declining. The fact that Sally personally prefers sports cars would be a bad reason to direct the company's resources to sports cars rather than SUVs. If Sally is a good CEO, she will not let her personal opinion impinge on her business judgment. An outsider evaluating Sally's leadership would therefore not have good reason to be interested in Sally's personal driving preference as a means of forecasting her business decision for the company.

But now suppose that Sally is asked directly how she thinks the company ought to invest its resources. Her answer will be a "personal opinion" in a trivial and uninformative sense: She is a person who holds that opinion and depending on the decision-making process in the company, that might or might not be enough to decide company policy. But the CEO's opinion about how to direct the firm's resources--based on the best available data about sales, gas price trends, etc.--is not a personal opinion in the same way that her preference for driving sports cars over SUVs is. The CEO's considered opinion about how to direct the firm's resources is more usefully described as a professional opinion.

Likewise in the law. When senators asked Judge Gorsuch whether he thought this or that prior Supreme Court case was rightly decided as an original matter, of course they were asking what Gorsuch the person thought and in that sense they were asking his personal opinion. But they were not asking for a personal opinion in any useful sense of the term personal. They were really asking for his professional opinion as a judge. And that kind of opinion is obviously extremely relevant to any evaluation of his projected performance as a justice.

To be clear, Judge Gorsuch could have ducked--and did duck--specific questions about the correctness of prior cases by using the might-come-before-me maneuver. But he also repeatedly relied on his newly fashioned just-my-personal-opinion dodge. That shouldn't have worked because it's so clearly incoherent. Even if one is naive enough to think that a judge's policy views have nothing to do with his legal views of contested issues, it goes beyond naiveté into self-contradictory nonsense to think that a judge's view of the law has nothing to do with his view of the law.