The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Judge Gorsuch's testimony today did not do anything to decrease my enthusiasm for his nomination (noted here). But I have noticed some Gorsuch skeptics complaining that he did not answer more of the questions that they really wanted him to answer.
This puts me in mind of Orin's recent post, "No there is no way to force Supreme Court nominees to give revealing answers." There, Orin argues:
Specifically, hearings can be short on revealing answers because nominees can always answer by using what I call "the fluency move" or "the open-minded move." The fluency move is an answer that reveals the nominee's deep understanding of existing Supreme Court doctrine. The open-minded move is an answer that rests on the nominee being open-minded about results and remaining committed to following the law wherever it goes in future cases. A nominee can do pretty well with just these two moves.
Much of that seems right to me, but I'd like to add an additional thought. The current norms about what kinds of questions nominees are allowed to evade are mostly just norms. With the exception of a few things governed by the canons of judicial ethics (and relevant mostly to sitting judges), those norms can be changed if enough Senators are willing to put their political capital at risk in doing so. Indeed, we have seen some such norms changes in recent years, for better or worse.
The reason that nominees do not give more in-depth answers about how they would rule in given cases, or whatever else, may simply be that they have no incentive to do so. In today's political configurations, there are very few Senators who both 1, will vote against a nominee because he or she didn't answer enough questions, and 2, would likely vote for that nominee if they got honest answers. In other words, I doubt that the Senators actually care whether nominees answer their questions, or at least they do not care enough to reward nominees they otherwise oppose, or to punish nominees they otherwise support.
I'm quite open to moving to a norm where nominees are expected to tell us much more than they currently do (though perhaps in a different format than the current theater). But if the Senators do not care, who can be surprised that the nominees follow suit?