The Biggest Flaw in the Supreme Court Confirmation Process

Nominees’ personal lives are subjected to greater scrutiny than the kind of judges they would be.

I believe Christine Blasey Ford. In her testimony to the Senate Judiciary Committee on Thursday, she was poised, direct, and polite in recounting an alleged assault by Brett Kavanaugh when they were teenagers. Her demeanor stood in sharp contrast to Kavanaugh’s rudeness and belligerence.

But I also believed Kavanaugh when he said that Democrats had seized upon these charges in a last-ditch effort to derail his bid for the Supreme Court. “There has been a frenzy to come up with something, anything …that will block a vote on my nomination,” declared Kavanaugh, whose nomination the Senate panel advanced on Friday.

And that’s because the confirmation process has become a ridiculous pantomime, where nominees proclaim their generic “philosophy” without telling you what they actually think. Kavanaugh was a model candidate in that regard, managing to duck every important question about the key judicial issues of our time. There’s no question that his evasiveness encouraged Democrats to pounce on allegations of sexual misconduct against him.

What else could they go on, really? In the dull, endless hours of hearings last month that preceded Blasey’s accusations, Kavanaugh refused to tell the Judiciary Committee whether he agreed with the Supreme Court’s 2015 decision affirming the right same-sex couples to marry; he refused to say if he believed Congress or the president could bar people from entering the United States on the basis of race; and, of course, he refused to provide his view of Roe v. Wade, other than saying that the 1973 abortion ruling was “settled law”—which says nothing about whether he would unsettle it.

Kavanaugh echoed President Trump’s first Supreme Court nominee, Neil Gorsuch, who sailed through his own confirmation hearings by evading questions about presidential power, voting rights, and environmental regulation. “If I were to start telling you which are my favorite precedents or which are my least favorite … I would be tipping my hand and suggesting to litigants I already made up my mind about their cases,” Gorsuch solemnly intoned.

Yet Gorsuch and Kavanaugh were nominated precisely because of they have made up their minds about abortion and much else. That’s why the Federalist Society put them on Trump’s list of Supreme Court candidates during the 2016 campaign, when Trump said he would only appoint judges who would overturn Roe v. Wade. That’s also why Republicans have rallied around Kavanaugh in his hour of need, pretending that they don’t know how he’d rule once confirmed.

Defending Kavanaugh’s silence on abortion, his Republican advocates dutifully trotted out Ruth Bader Ginsburg’s comment at her own 1993 confirmation hearing: “A judge should not make public comments on the merits of a matter pending or impending in any court.” But they neglected to note that Ginsburg offered a full-throated defense of abortion rights, which she said should be rooted not just in privacy concerns—the crux of the Roe decision—but also in gender equality

I believe Brett Kavanaugh was less than truthful in his testimony last week, just as Clarence Thomas almost surely lied about his harassment of Anita Hill. Subsequent investigations found that Thomas had made comments to other women exactly like the ones Hill described, including the notorious remark about a pubic hair in his Coke. It’s simply impossible to imagine how Hill could have made up the same thing.

Likewise, there’s no good reason to think that Ford invented her story. Now that President Trump has ordered an FBI investigation, we may soon discover that Kavanaugh lied about his encounter with Christine Blasey Ford—or, at least, about his drinking and sexual activities as a young man.

But the whole Supreme Court confirmation process is a lie, too. You can’t nominate people for the Court because of their beliefs, then allow them to remain silent about what they believe. Until that changes, we can expect long rounds of attacks on the background and character of every nominee.

Indeed, at Kavanaugh’s earlier hearings, his critics spent most of their time trying to establish if, as former George W. Bush aide, Kavanaugh was aware of emails stolen from Democrats—about judicial nominations, ironically enough—and whether he had lied about them during his confirmation testimony for the federal circuit court. They also suggested that he had known more about the notorious Bush-era “torture memos” than he previously acknowledged.

While a Supreme Court nominee’s past behavior matters, it’s fast becoming the only thing seriously examined in confirmation hearings. Thanks to our broken and dishonest process, senators have virtually given up their vital role of advice and consent about the heart of the matter: the nominee’s jurisprudence.

Future confirmation hearings will descend into a bloodbath of personal innuendo and accusations, as frustrated senators look for something—anything—that will sink the person the president of the opposing party has chosen. Some of these charges will be fair and honest; others won’t be. But we’ll have no choice but to go for the jugular if future judges aren’t required to tell us what they truly think. That might the saddest truth of all.

Jonathan Zimmerman

Jonathan Zimmerman teaches education and history at the University of Pennsylvania. He is the author, with Emily Robertson, of "The Case for Contention: Teaching Controversial Issues in American Schools."