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How Nominees Master The Art Of The Non-Answer In Senate Hearings


The Senate Judiciary Committee is spending 10 hours today questioning President Trump's nominee for the Supreme Court, Neil Gorsuch. But how much will we really learn about Gorsuch from his answers?

Well, joining us with a historical perspective is NPR senior editor and correspondent Ron Elving. Welcome to the studio, Ron.


CORNISH: We've seen legal scholars call this process farce, a kabuki dance. Has it, like, lost any essential value?

ELVING: Its value has changed, Audie. In the past, there had been some expectation that nominees would be detailed about their legal philosophy and how it would apply to their work on the bench.

CORNISH: And I gather this kind of ended with Ronald Reagan's nominee Robert Bork and his hearings in 1987 because, at that time, Bork actually answered the questions the senators gave him - right? - and then the Senate voted against his nomination.

ELVING: That's right. Now we should note Bork was facing a Democratic Senate majority, a lot of organized opposition. But the hearings definitely didn't help. And after that, the White House got savvier about coaching nominees.

CORNISH: Right. This could be said of Clarence Thomas in 1991, answering or not answering a question from Senator Pat Leahy about Roe v. Wade, the landmark abortion decision.


PAT LEAHY: So you don't ever recall stating whether you thought it was properly decided or not.

CLARENCE THOMAS: I can't recall saying one way or the other, Senator.

LEAHY: Well, was it properly decided or not?

THOMAS: Senator, I think that that's where I just have to say what I've said before that to comment on the holding in that case would compromise my ability to...

ELVING: Yes, well, two years later, the new president was Bill Clinton. He was a Democrat, and his first nominee, Ruth Bader Ginsburg, offered this set of guidelines.


RUTH BADER GINSBURG: A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.

ELVING: And that has now become known as the Ginsburg Standard. It's understood that nominees of either party will walk a fine line to maximize their chances of being confirmed.

CORNISH: Right. This is not an official rule, but it's certainly something many nominees since have embraced, right? It feels like the only drama at this point is seeing if someone slips up.

ELVING: Yes, and generally speaking, they don't. You had John Roberts in 2005. Here's a typical answer from him.


JOHN ROBERTS: Well, again, I think I should stay away from discussions of particular issues that are likely to come before the court again and...

ELVING: And in the same year, Samuel Alito.


SAMUEL ALITO: It is a press - if settled, means that it is - it can't be re-examined, then that's one thing. If settled means that it is - it is a precedent that is...

CORNISH: So this has come to be pretty disappointing for a lot of people watching these hearings and expecting to get a real sense of what these judges believe.

ELVING: Yes, in fact, years ago, there was a Harvard Law Review article that lambasted the confirmation hearings as vapid and hollow and full of evasive answers and platitudes. It was widely read and quoted, especially after its author, Elena Kagan, was herself nominated to the court by President Barack Obama in 2010.

CORNISH: And her answers were considered as vague as anyone else's, right? She adhered to the Ginsburg Standard.

ELVING: Yes, as did the next Obama nominee, Sonia Sotomayor.


SONIA SOTOMAYOR: I can't comment further than to say that I understand the questions, and I understand what state legislatures have done and would have to await another situation, or the court would, to apply the holding in that case.

ELVING: So I guess it shouldn't have surprised anyone when Judge Gorsuch said this this morning.


NEIL GORSUCH: I'm not going to say anything here that would give anybody any idea how I'd rule in any case like that that could come before the Supreme Court or my court of the 10th Circuit.

CORNISH: So in the end, are senators, are viewers left to try and read between the lines? Is this why they're digging so deep into these judges' backgrounds?

ELVING: Many of the senators really, in these questions and in their long speeches between questions, are speaking more to their own constituents and future voters than they are really speaking to the judge before them.

CORNISH: That's NPR's Ron Elving. Ron, thanks so much.

ELVING: Thank you, Audie.

(SOUNDBITE OF TORO Y MOI SONG, "SAY THAT") Transcript provided by NPR, Copyright NPR.

Ron Elving is Senior Editor and Correspondent on the Washington Desk for NPR News, where he is frequently heard as a news analyst and writes regularly for NPR.org.