In one of the more striking moments from the Senate confirmation hearings for Supreme Court nominee Neil Gorsuch this week, Sen. Charles E. Grassley offered this advice:
Don’t answer every question.
Grassley told Gorsuch that the missive was rooted in decades of experience — this is his 14th confirmation hearing for a Supreme Court nominee, he said. Some judiciary scholars said that it appeared to stem from one episode in particular: the 1987 rejection of Reagan nominee Robert H. Bork.
Grassley, the chairman of the Senate Judiciary Committee, is one of three senators on the panel — and seven in the chamber overall — who weathered the five days of bitter hearings that upended Bork’s nomination. The battle over Bork serves as the symbolic beginning of the 30-year era of political warfare over judicial nominations and is considered the root of a present-day trend for potential justices to reveal as little as possible about their judicial philosophy during the confirmation process.
Grassley told Gorsuch, who was nominated by President Donald Trump to replace the late Justice Antonin Scalia, that his colleagues would try get the federal appeals court judge to “make promises and commitments” about his stance on certain issues by asking him about specific cases.
“They know that you can’t answer,” he said Tuesday morning, at the opening of the first full day of senators’ questions for the nominee. “But they’re going to ask you anyway.”
And in case Gorsuch didn’t get his point, Grassley continued, “I’ve heard justices nominated by presidents of both parties decline to answer questions like these.”
Paul M. Collins Jr., the author of “Supreme Court Confirmation Hearings and Constitutional Change,” called Grassley’s comments “highly unusual,” and said it could be rooted in Grassley’s experience during the Bork hearings.
“The story with Bork was that he answered too many questions,” said Collins, a legal studies professor at the University of Massachusetts Amherst.
There was no question about Bork’s qualifications. He was a Yale professor, Richard Nixon’s former solicitor general, and a former federal appeals court judge. But Democrats, who had recently won control of the Senate, objected from the outset to his adherence to “originalism.” The judicial philosophy maintains that constitutional rights should be interpreted only as the framers meant them at the time of enactment.
Democrats pressured Bork to elaborate on positions they considered outside the mainstream. Bork’s strategy of providing frank, often combative, answers was considered a major factor in the final 58-42 vote against him.
In recent weeks, some judicial scholars have offered the Bork case as a model of how Democrats could kill Gorsuch’s nomination. The strategy of obstructing candidates by defaming them and vilifying their characters has come to be known as “Borking” the nominee.
Others have said the battle over Bork was a mistake. They say the current hearings present an opportunity to end an era of senatorial bickering over judicial nominees that has only undermined the public confidence in the judicial system.
A murky legacy
The senators who served during the Bork hearings have offered differing interpretations of the legacy left behind.
Democrats have said Bork lost because of a toxic judicial philosophy that persists today, and could still torpedo a nomination. That’s how Patrick J. Leahy, who has served in the Senate since 1975, described it during his opening statements this week.
“Judge Gorsuch appears to have a comprehensive originalist philosophy, the approach taken by jurors such as Justice Scalia, Justice [Clarence] Thomas, former Judge Bork,” Leahy said. “While it has gained some popularity within conservative circles, originalism, I believe, remains outside the mainstream of moderate constitutional jurisprudence.”
Republicans, on the other hand, have described the Bork hearings as the ultimate example of Democratic obstructionism. Sen. Orrin G. Hatch, a member of the Senate since 1977, took that tack during the fight over President Barack Obama’s nomination of Judge Merrick Garland last year to fill the seat left vacant by Scalia’s death.
“Senate Democrats are responsible for provoking the so-called confirmation wars with the political and ideological inquisition used to defeat the Supreme Court nomination of Robert Bork and the despicable smear tactics used against the nomination of Clarence Thomas,” he told USA Today last year. “Senate Democrats have also been responsible for every major escalation in judicial confirmations since 1992.”
Mark Gitenstein, who managed the Judiciary Committee staff during the Bork conformation, questioned the theory that the Bork battle changed the confirmation process.
He said senators on the committee, including those who were there for the Bork hearings, have continued to pursue similar strategies, but that’s because the issues remain much the same — particularly the question of fundamental rights granted by the Constitution.
“No nominee will espouse the view that Bork did, although some of them may privately hold it, that there are no such things as fundamental rights,” he said. “Every nominee since then has tried to find a way to either keep quiet, and be a stealth nominee, or to take a position that they distinguish themselves from Bork.”
Gitenstein said if you listen closely to what nominees say, it is “fairly obvious” where they stand. He would want to listen for Gorsuch’s views on the limitations of executive power when it comes to civil liberties and national security, he said.
“If you feel that, as a senator, you’re not getting honest and complete answers, you can vote against the nominee,” said Gitenstein, who wrote a book “Matters of Principle” about the Bork hearings.
Collins, the UMass Amherst professor, also questioned the theory that Bork’s confirmation hearings changed everything. He said it simply amplified a trend toward partisan clashes over court nominees that was already underway.
In any case, he said, the Senate’s institutional memory will likely be preoccupied with a more recent event for the foreseeable future: The Republicans’ unprecedented refusal to even give Garland a hearing.
“Bork has always been a presence at these hearings, but it’s as if Merrick Garland is sitting in the room with them,” Collins said. “That will not heal quickly for the Democrats.”