GUEST COMMENTARY--In January 2006, I testified before the Senate Judiciary Committee against the confirmation of Samuel A. Alito Jr. to the Supreme Court. At a break, then-Sen. Joe Biden came up to me and said it was all an exercise in Kabuki theater. He said everyone in the room knew that Alito was going to be a very conservative justice. He said the Republicans were pretending that he was open minded and had no ideology, while the Democrats were trying to ask questions to trip Alito up and he was too smart for that.
I think we are likely to see another exercise in Kabuki theater with the Brett Kavanaugh hearings unless the senators exercise their power and insist that the judge answer questions about his views on crucial constitutional issues. A myth has developed that nominees should be able to refuse to answer such inquiries. Neil M. Gorsuch, for example, refused even to express his views on Brown vs. Board of Education.
There is no basis in the Constitution or law for the idea that nominees to the Supreme Court should be given a free pass on explaining their views. The idea that a nominee may refuse to answer questions rests on three premises, none of which have merit. (Read the rest.)
-cw
