The “Settled” Agony of the Hearings

George Sutherland, the former Senator from Utah, was returning from Europe, where he was representing his country in arbitration over the seizure of Norwegian ships during the late war (WWI). From his own ship, he wired to President Harding, expressing concern over the illness of Mrs. Harding.  By the time Sutherland arrived back at his apartment in Washington, he had a note from Harding, expressing gratitude over his concern for Mrs. Harding.  The president went on to remark that, while Sutherland was en route, a vacancy opened on the Supreme Court, Harding had sent Sutherland’s name to the Senate that day, and that same day the Senate confirmed the appointment.  And Harding added, “I suppose you know all about this without me having taken the time to communicate with you.”

That was 1922 and, as you may have noticed, that is not the way this matter is handled these days.  It may come as a surprise to many, but we have not always had hearings for figures nominated to the Supreme Court.  The hearings flare in times of contention, where momentous issues and political crises are at hand.

But things moved to another, poisonous level with the pogrom that was carried out against Robert Bork in 1987. The source of the vexation is of course obvious.  Things changed for the worse in 1973 when the Supreme Court discovered a right to abortion in the Constitution and in one stroke made abortion a national issue.

For the Court had swept away all of those laws in the States that barred or deeply restricted abortion.  Overnight, the laws on abortion in the States came under the supervision of federal judges; and what becomes the business of the federal courts becomes now the business of the federal government.

If abortion, as a moral question, is contentious, that contention must feed a new turbulence into our national politics.  But if abortion is the business of the federal courts, it must be the business of Congress no less than the courts.  And yet, few lawyers seem to remember any longer the authority of Congress, to weigh in – to counter and narrow the holdings of the Court – and so our politics has now been focused on the control of the courts.

When Robert Bork was nominated in 1987, it was plausibly thought that he could be the fifth conservative judge, in a position now to overturn Roe v. Wade.  That is what raised the stakes and brought a series of hearings, escalating in violence and libel, with made-up stories of Clarence Thomas, and vicious uncorroborated charges against Brett Kavanaugh.  And one lingering result was that the Kavanaugh family needed security when they went to Mass on Sunday.


I’ve made the case in these columns for a series of questions, posed in the hearings, which could bring out just how radical the Democratic position has become on abortion. Those points could have been raised without strain by any of the Republicans during the hearings, and they would have made these hearings vastly more costly for the Democrats.

But it was virtually predictable that not even Josh Hawley would make that move.  For the line has settled in now as the reigning orthodoxy among the “handlers” of the nominee that it is best not to set off tremors: there is no point in picking arguments with Democrats and delaying things by stirring more furies in the land.

For the nominee: just keep your head down, take the pummeling, and we’ll get through this.

One good friend of mine, who has worked on the preparations of the nominees, offers the defense and apology that both sides have now “settled” into this format: The Democrats press on whether the nominee will accept the “precedents” that installed a right to abortion and same-sex marriage, sustained Obamacare, and given new standing to the “transgendered.” The Republican nominee then retreats to cover by invoking the lines of Ruth Ginsburg: that it would not be proper to express any judgment, even on hypotheticals, lest they prefigure the judgment she will reach in a future case – and perhaps even encourage the bringing of that case.

And so, during the hearings, Sen. Dianne Feinstein of California cited an article by a leading conservative law professor, arguing the familiar line that the Commerce Clause could not have provided a tenable ground for the constitutionality of Obamacare.  By requiring people to purchase medical insurance, Congress was creating the “commerce” that suddenly produced its authority to legislate.

Senator Feinstein could then ask, “Do you agree with originalists who say that the Medicare program is unconstitutional?” Judge Barrett professed to take her guidance from Justice Scalia, her late mentor, who was celebrated as an “originalist.”

But true to form – and quite rightly – Judge Barrett answered in this way:

I can’t answer that question in the abstract because as we’ve talked about the no hints, no forecast, no previews rule. I assume Professor [Michael] Rappaport lays out a case but it’s not a question that I’ve ever considered before. But if I did consider it would be in the context of an actual case or controversy.

On the other side, the Democratic nominees will follow the same playbook.   But when our friends say that both sides have “settled” into this format, we might well ask: How has this worked for everyone?  Did it protect Clarence Thomas and Brett Kavanaugh from the libels that haunt them to this day and require protection for the Kavanaugh family?

One of the most accomplished federal judges I know has told me emphatically that he would not put his family through this ordeal for the sake of an appointment. That is part of the effects produced by this “settled” procedure.  At the same time, the conservatives must offer no criticism of Roe or any interest in overturning it.

We might ask our friends then among the handlers:  Where again did you find the “good” in this format, so nicely “settled”?


*Photo: Drew Angerer, AP. Judge Barrett holds up the “notes” she used during her testimony: click to watch.

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. He is the author of Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is available for download. His new book is Mere Natural Law: Originalism and the Anchoring Truths of the Constitution.