THE HYDRAULIC THEORY OF OPPOSITION

Ian M. Swenson *

For many years scholars and the public have assumed that Circuit Court confirmation hearings, like Supreme Court confirmation hearings, are con- tentious and focused on hot button issues such as abortion. In fact, this article will show that prior to the Trump administration Circuit Court nom- inees were rarely questioned about abortion and hearings were rarely con- tentious. But in the 115th Congress (the first two years of the Trump ad- ministration) the majority of nominees were questioned about abortion— some of them at great length. This article seeks to explain this change in senatorial behavior and suggests that it is the result of legal and political pressures on the senators as well as changes to Senate procedures. This is the Hydraulic Theory of Opposition. The legal and political pressures on

* JD, New York University School of Law, 2019. My thanks to Dean Trevor Morrison for his supervision. My thanks also to Luke Goveas, Cameron Sinsheimer, and Nicholas Gallagher, for their smart and helpful edits. Thanks finally to the editors of the Journal of Law & Liberty for their terrific work preparing this article for publication. 205

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the Democratic senators drive them to oppose these nominees based on the nominees’ presumed position vis-à-vis abortion; and the way the Senate structures its procedures determines how this opposition manifests. Because the Senate has eliminated sub rosa forms of opposition—such as the filibus- ter and Blue Slips—contentious confirmation hearings are now how that opposition manifests. Because confirmation hearings do nothing to improve the confirmation process and do considerable harm to the nominees, the fed- eral judiciary, and the public’s perception of the judiciary, this article sug- gests a further change in Senate procedure to improve the process: The elim- ination of confirmation hearings as a standard feature of the confirmation process.

INTRODUCTION In 1973 the Supreme Court decided Roe v. Wade and declared that women have a right to abortion protected by the United States Constitution.1 That decision thrust federal courts into the abortion debate: They would decide how abortion could be regulated. When Roe’s central holding was reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey,2 Justice Scalia’s dissent famously predicted that the fact that judges and not legislatures would decide how abortion could be regulated would lead confirmation hearings to “deteriorate into question-and-answer sessions in which senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them.”3 This prediction has come to pass. Although questions about abortion have been a feature of Supreme Court confirmation hearings since Justice O’Connor was nominated in 1981, they have not been a common feature of Circuit Court confirmation hearings

1 410 U.S. 113 (1973). 2 505 U.S. 833 (1992). 3 Id. at 1000-01 (Scalia, J. dissenting)

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until the Trump administration. In the 115th Congress—the first two years of the Trump administration—more than half of Circuit Court confirmation hearings involved a senator asking a nominee for her views on the correctness of Roe or the morality of abortion. This paper documents and then seeks to explain that change in senatorial behavior. Part I first briefly describes Roe’s role in Supreme Court confirmations since 1981. It then describes the role Roe has played in Circuit Court confirmations using both quantitative analysis of every Circuit Court hearing since 1981 and qualitative analysis of how those hearings have changed over time. Part II explains this change. It first describes factors that may be driving senators to focus on abortion, namely the current legal regime, the ideological makeup of President Trump’s nominees, political pressures on the senators, and the strategic considerations at play in the 115th Congress. It then describes how changes to Senate procedures are forcing senators to express their opposition in confirmation hearings rather than by using covert procedural tools. This is similar to the Hydraulic Theory of Money in campaign finance4—call it the Hydraulic Theory of Opposition. Given that there is opposition and there has been opposition for some time, how the Senate structures its procedures will dictate how that opposition is expressed. Because all other tools have been taken off the table, contentious confirmation hearings are now how that opposition manifests. Part III then describes how the Roe question affects other parts of the confirmation hearing. In short, because nominees do not want to

4 Raymond J. La Raja & Brian F. Schaffner, The Hydraulics of Campaign Finance, Michigan Publishing https://quod.lib.umich.edu/u/ump/13855466.0001.001/1:7/--campaign-finance- and-political-polarization-when-purists?rgn=div1;view=fulltext.

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answer questions about abortion, they refuse to answer questions about any legal topic. Finally, Part IV suggests that the current state of confirmation hearings is concerning. It erodes public confidence in the independence of the judiciary and may in fact be a threat to judicial independence. It then suggests a fix that will force senators to express their opposition in a more productive manner: the elimination of confirmation hearings as a standard feature of the confirmation process.

I. THE HISTORY OF ROE’S ROLE IN THE CONFIRMATION PROCESS

A. ROE AND SUPREME COURT CONFIRMATIONS On July 7th, 1981 President Ronald Reagan announced he intended to nominate Sandra Day O’Connor to be an Associate Justice of the Supreme Court of the United States.5 The first question a reporter asked following the announcement was, “[d]o you agree with her position on abortion, Mr. President?”6 From there, abortion dominated Justice O’Connor’s confirmation.7 Outside the hearing room, social conservatives such as Jerry Falwell criticized the President’s choice of Justice O’Connor because they were not confident that she opposed abortion.8 Inside the hearing room, Republican senators spent three days questioning

5 President Ronald Reagan, Remarks Announcing the Intention to Nominate Sandra Day O’Connor to Be an Associate Justice of the Supreme Court of the United States (July 7, 1981). 6 Id.; Interestingly the first question a reporter asked when President Reagan announced the nomination of Antonin Scalia to the Supreme Court was: “Mr. President, what impact do you think this will have on the abortion issue—perhaps the most emotional issue facing the Court?” President Ronald Reagan, Remarks Announcing the Resignation of Chief Justice Warren E. Burger and the Nominations of William H. Rehnquist to Be Chief Justice and Antonin Scalia to Be Associate Justice (June 17, 1986). 7 Linda Greenhouse, Panel Approves Judge O’Connor, N.Y. TIMES, Sept. 15, 1981, at A16 8 Linda Greenhouse, New Right Loses on Judge but Gains New Zeal, N.Y. TIMES, Sept. 17, 1981, at A20

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her about both her legal opinion of Roe v. Wade9 and her personal opinion on abortion.10 Justice O’Connor repeatedly answered that she was personally opposed to abortion but declined to give a legal opinion on the matter.11 She did not want to comment on an issue that could come before Supreme Court.12 In the end, Justice O’Connor’s opinion on abortion did not matter. She was the popular nominee of a popular president and was confirmed 99–0.13 The pro-life opposition to her nomination has been relegated to a brief statement by Senators Denton, East, and Grassley in the Senate Report14 and is occasionally mentioned very briefly in histories of Supreme Court nominations.15 But her nomination was the beginning of something new. Prior to O’Connor’s confirmation, no Supreme Court nominee had ever been asked about abortion.16 Since her confirmation, every Supreme Court nominee has been asked about abortion.17 This both makes sense and does not. Roe and its progeny are a creation of Supreme Court case law, so any change to the Court’s personnel may result in a change to the constitutional status of abortion. Thus, parties that care about how abortion is regulated will care about the makeup of the Court and will try to advocate for their

9 See, e.g., The Nomination of Judge Sandra Day O’Connor of Arizona to Serve as an Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 97th Cong. (1981) 198-99 (statement of Sen. East, Member, S. Comm. on the Judiciary). 10 Greenhouse, supra note 8. See also id. at 98 (statement of Sen. DeConcini, Member, S. Comm. on the Judiciary). 11 Greenhouse, supra note 8. 12 Id. 13 Jim Mann, O’Connor OKd by Unanimous Vote in Senate, L.A. TIMES, Sept. 22, 1981. 14 The Nomination of Judge Sandra Day O’Connor, supra note 5 at 2-7. 15 HENRY ABRAHAM, JUSTICES, PRESIDENTS, & SENATORS: A HISTORY OF THE U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO BUSH II 267 (5th ed. 2007). 16 LORI RINGHAND AND PAUL M. COLLINS, SUPREME COURT CONFIRMATION HEARINGS & CONSTITUTIONAL CHANGE 123 (2013). 17 Id.

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preferred candidates and against ones they believe will not support their goals. Supreme Court confirmation hearings are also an excellent campaign opportunity for senators. Every major television station, newspaper, and radio station covers these hearings, and senators can use the hearings to try and make a national name for themselves.18 A tough line of questioning about a nominee’s opinion of the correctness of Roe or the morality of abortion can get the public’s attention and signal to the senator’s constituents that she shares their priorities. Finally, the hearings are a fundraising opportunity for both advocacy groups and the senators.19 The more attention senators can bring to themselves and their actions, the more money they raise. And yet, for all the hearings accomplish, they fail miserably to reveal anything about the nominees’ views on Roe or abortion. First, the nominees never tell the committee whether they think Roe was correctly decided. 20 If the question is too specific, the nominees follow the lead of Justice Ginsburg—and before her nominees such as Justice O’Connor—and say that answering might signal how they will vote in the future, which is contrary to judicial impartiality and, therefore, inappropriate.21 If the question is too general, the judge will either respond that they can only deal in the specifics of actual cases and can’t engage with abstractions or they

18 See, e.g., Kathleen Parker, Corey Booker’s ‘Spartacus’ Moment, WASH. POST (Sept. 7, 2018) https://www.washingtonpost.com/opinions/cory-bookers-spartacus- moment/2018/09/07/8c97eaee-b2f6-11e8-aed9- 001309990777_story.html?utm_term=.6f7b5780c2ec (quoting Booker as saying in the hearing, “[t]his is about the closest I’ll probably ever have in my life to an ‘I am Spartacus’ moment”). 19 See, e.g., Josh Keefe Collins Brings in Most Money of Her Career After Kavanaugh Vote, BANGOR DAILY NEWS (Feb. 1, 2019) https://bangordailynews.com/2019/02/01/mainefocus/collins-brings-in-most-money-of-her- career-after-kavanaugh-vote/. 20 See, e.g., Kamala Harris Questions Kavanaugh on Roe, C-SPAN (Sept. 5, 2018) https://www.c-span.org/video/?c4747564/kamala-harris-questions-kavanaugh-roe. 21 Elena Kagan, Confirmation Messes, Old and New 62 U. CHI. L. REV 919, 925 (1995).

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will summarize applicable precedent in an even-handed but long- winded way to run the clock. 22 Thus, despite all the money and attention, nominees never tip their hand.23 Second, before a nominee has even stepped into the West Wing to interview with the President, the attorneys in the White House Counsel’s office have done their research and believe that they know how the nominee will vote on a variety of issues that may come before the court, including abortion.24 Although there is a strong norm against asking a potential nominee directly how she will vote on a particular issue, Presidents try very hard to make sure that their nominees will vote in line with their preferences: When they guess incorrectly they and their supporters consider that failure catastrophic.25 For example, President George H.W. Bush’s misfire on Justice Souter stung conservatives so deeply that over a decade

22 Id. 23 See Nina Totenberg, Kagan Confirmation Hearings Near End, NPR (June 30, 2010) https://www.npr.org/templates/story/story.php?storyId=128220846 (“[Kagan] declined to give any hint of how she would rule on, or even approach, most issues.”); Kagan, supra note 23. But see Nina Totenberg, The Reality of the ‘Ginsburg Rule’, NPR (July 13, 2018) https://www.npr.org/2018/07/13/628711698/the-reality-of-the-ginsburg-rule (detailing some of Justice Ginsburg’s more fulsome answers to questions in her confirmation hearing). Although the Ginsburg Rule” may not be the bright line prohibition on discussing cases that it is sometimes presented as, see Lori A. Ringhand & Paul M. Collins, Jr., Neil Gorsuch and the Ginsburg Rules 93 Chicago-Kent L. Rev. 475 (2018), Justice Ginsburg and others have consistently chosen to either not answer questions about abortion or to do so by summarizing Supreme Court caselaw rather than preview how they would rule in a future case. See, e.g., Nomination of Ruth Bader Ginsburg to Be Associate Justice of the Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 103d Cong. (1993) 150 (“Judge GINSBURG. The Court itself has said after Casey I don't want to misrepresent the Supreme Court, so I will read its own words. This is the statement of a majority of the Supreme Court, including the dissenters in Casey: 'The right to abortion is one element of a more general right of privacy or of Fourteenth Amendment liberty.") 24 Interview with Robert Bauer, Former White House Counsel, in New York City, New York (Oct. 30, 2018); Interview with Trevor Morrison, Former Associate White House Counsel, in New York City, New York (Oct. 31, 2018). 25 JAN CRAWFORD GREENBERG, SUPREME CONFLICT 107 (2008) (describing the common conservative view that the nomination of David Souter was one of the greatest failures of George H. W. Bush’s administration).

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later, during his son’s presidential administration, some commentators would still cry “no more Souters.”26 Thus, one can, in general, assume that the administration’s policy with respect to abortion is going to be the nominee’s position with respect to abortion. There have been some surprises. Justices O’Connor, Kennedy, and Souter were all appointed by pro-life Republicans and were believed to be solid votes to overturn Roe. They were not and in fact provided the crucial votes in Planned Parenthood of Southeastern Pennsylvania v. Casey to maintain Roe’s central holding.27 But Casey taught conservatives the importance of looking into a nominee’s background and being confident as to their position on this and other issues. The proof of that is in whom Republican presidents have chosen for the Supreme Court since Casey was decided. Chief Justice Roberts was in the Solicitor General’s office when Casey was argued, and his name is on the Government’s brief in Rust v. Sullivan, which argued that Roe v. Wade “was wrongly decided and should be overruled” and that the Court’s conclusions in Roe that there is a fundamental right to abortion “find no support in the text, structure or history of the Constitution.”28 His wife Jane served on the board of Feminists for Life from 1995 to 1999 and was their legal counsel for twelve years.29 Justice Alito was on the Third Circuit panel that decided Casey and would have upheld Pennsylvania’s law in its entirety.30 Justice Kavanaugh was clerking for Judge Walter K.

26 The Editorial Board, No More Souters, Wall Street J. (July 19, 2005) https://www.wsj.com/articles/SB112173866457289093. 27 Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992). 28Brief for the Respondent at 13, Rust v. Sullivan, 500 U.S. 173 (1991) (Nos. 89-1391 and 89- 1392). 29 Jane Sullivan Roberts’s Service to Women, Feminists for Life, https://www.feministsforlife.org/-news/jsroberts.htm. 30 Planned Parenthood of Se. Pennsylvania v. Casey, 947 F.2d 682, 719-27 (3d Cir. 1991) (Alito, J. concurring in part and dissenting in part).

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Stapleton that year,31 and Judge Stapleton wrote the Third Circuit’s majority opinion in Casey upholding most of Pennsylvania’s law.32 Justice Gorsuch is a committed originalist and has authored a book on why assisted suicide and euthanasia should not be legalized.33 Chief Justice Roberts, Justice Alito, and Justice Kavanaugh are practicing Catholics. 34 Justice Gorsuch was raised Catholic and remains a practicing Christian.35 And all of these men have ties to the Federalist Society.36 Although the Federalist Society is a non- partisan organization, 37 the membership tends to be conservative. And although not every member of the Federalist Society is pro-life, judicial conservatives “take issue with the Court’s Roe v. Wade decision because they believe it to be a lawless judicial exercise without any basis in the Constitution.”38 Of course, Justice O’Connor in her confirmation hearing assured the senators that she was personally opposed to abortion, 39 and

31 Scott Shane, Steve Eder, Rebecca R. Ruiz, Adam Liptak, Charlie Savage & Ben Protess, Influential Judge, Loyal Friend, Conservative Warrior — and D.C. Insider, N.Y. TIMES (July 14, 2018). 32 Planned Parenthood of Se. Pennsylvania v. Casey, 947 F.2d 682 (3d Cir. 1991). 33 NEIL GORSUCH, THE FUTURE OF ASSISTED SUICIDE AND EUTHANASIA (2006). 34 See Allyson Escobar, Why do Catholics Make-Up a Majority of the Supreme Court?, AMERICA: THE JESUIT REV. (July 18,2018) https://www.americamagazine.org/politics- society/2018/07/18/why-do-catholics-make-majority-supreme-court and Shane et al, supra note 31. The Catechism of the Catholic Church states that “[s]ince the first century the Church has affirmed the moral evil of every procured abortion. This teaching has not changed and remains unchangeable. Direct abortion, that is to say, abortion willed either as an end or a means, is gravely contrary to the moral law” (No. 2271) http://www.vatican.va/archive/ccc_css/archive/catechism/p3s2c2a5.htm. 35 Id. 36 David Montgomery, Conquerors of the Courts, WASH. POST (Jan 2, 2019) https://www.washingtonpost.com/news/magazine/wp/2019/01/02/feature/conquerors-of-the- courts/?utm_term=.8277b4c0e82c. 37 The Federalist Society, https://fedsoc.org/. In the interest of full disclosure, the author has been a member of the Federalist Society since 2017. 38 Greenburg, supra note 25 at 251. 39 Greenhouse, supra note 8.

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Justice Kennedy is a devout Catholic.40 Both were crucial votes in Casey to uphold Roe. So, again, one can never be sure until the votes are cast. But the two who have had the opportunity to cast votes in an abortion case, Justices Roberts and Alito, were both in the majority in Gonzales v. Carhart 41 and dissented in Whole Women’s Health v. Hellerstedt.42 Thus the George W. Bush team appears to have guessed correctly as to how they would vote when the time came. And on the Democratic side, all the current Democratic appointees, Justices Ginsburg, Breyer, Sotomayor, and Kagan, were in the pro-choice majority in Whole Women’s Health, demonstrating that Presidents Clinton and Obama similarly guessed correctly.43 All of which is to say that since Casey it has been reasonable to impute the appointing President’s position on abortion to his Supreme Court nominees. All the important actors in the process— the activists, the senators, the reporters, the public, the attorneys in the executive branch who help the nominee get confirmed, the President, and the nominee—know this. And questioning the nominee to get her position on abortion is pointless. The questioner knows the answer—or thinks she does—and the nominee is not going to answer. Thus, the question is about everything but the answer. It is about making good TV, exposure for the senator,

40 Veronika Bondarenko and Grace Panetta, 'Kennedy's Court': Meet 81-year-old Supreme Court justice Anthony Kennedy, who just announced his retirement, BUSINESS INSIDER (Jun. 27, 2018) https://www.businessinsider.com/justice-kennedy-retire-bio-facts-supreme-court- 2017-6. 41 550 U.S. 124 (2007). 42 136 S.Ct. 2292 (2016). 43 Id. See also JEFFREY TOOBIN, THE NINE: INSIDE THE SECRET WORLD OF THE SUPREME COURT 74-83 (2008) (detailing President’s Clinton campaign pledge to nominate a pro-choice justice and the background research he performed to assure himself that Justice Ginsburg supported a constitutional right to abortion).

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pleasing activist groups, raising funds, and making the opposing party uncomfortable for a few days in September.44

B. ROE AND CIRCUIT COURT CONFIRMATION Given that Supreme Court nominees after 1981 have consistently been questioned about their views on Roe and on abortion, one might expect that lower court confirmation hearings have followed a similar pattern; that they would basically be a JV version of Supreme Court hearings. In fact, that has not been the case until the Trump administration.45 The following figures represent data about every Circuit Court nomination hearing between 1981 and 2018 by session of Congress.

44 The desire to mess with the opposing party cannot be overstated. Take Questions for the Record (or QFRs in Department of Justice and Senate parlance). These are written questions the senators can submit to the nominee following the hearings to get an answer in writing. After a week of hearings, in both open and closed session, and 32 hours of testimony, Democrats on the Senate Judiciary Committee submitted 1,278 QFRs to Justice Kavanaugh—more than every previous Supreme Court nominee combined. Senator Feinstein alone submitted 241 questions. The questions came in on Monday and answers were expected by Wednesday. The questions were almost entirely repeats of things the senators had asked at the hearings. The senators also repeated each other’s questions in their QFRs. But the senators declined to submit QFRs in matching formats, forcing then-Judge Kavanaugh’s team to tailor their formatting to each senator’s particular style—a small inconvenience unless one has to do it for nearly 1,300 questions. The committee vote was scheduled for the day after QFRs were returned. There was no way that the senators intended to read Justice Kavanaugh’s responses. And there was no way these responses were going to change a single vote on the Senate Judiciary Committee. The only point was to rattle the Judge’s cage and abuse the process. Committee Democrats Continue Delay Tactics with Volume of Written Questions for Kavanaugh, Senate Judiciary Committee (Sept. 12, 2018), https://www.judiciary.senate.gov/press/rep/releases/scotus_committee-democrats-continue- delay-tactics-with-volume-of-written-questions-for-kavanaugh. 45 That the O’Connor hearing in 1981 is the first to feature questions about abortion is not an accident. As Defenders of the Unborn documents, although the abortion debate today divides the country neatly between conservatives and liberals that was not always so. In fact, many early pro-life activists saw their work as part of a broader progressive agenda. It was only after Roe was decided that pro-life and pro-choice advocates sorted into their current arrangement and that the major political parties seized on abortion as a hot button issue. See Daniel K. Williams, Defenders of the Unborn (2016).

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Figure 1 shows the number of Circuit Court hearings, by session of Congress, in which a nominee was asked directly about abortion— e.g. “Was Roe correctly decided?” or “Are you Pro-Life?”

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Fig. 1 Number of Hearings in Which a Nominee Was Asked Directly about Abortion 25 20 20

15

10 7

5 2 2 3 0 0 0 0 0 1 0 0 0 0 0 1 1 0

0

97th 98th 99th

102d 103d

101st

100th 104th 105th 106th 107th 108th 109th 110th 111th 112th 113th 114th 115th

4647 The chart shows that, in general, senators rarely asked about abortion in Circuit Court hearings. The previous high, seven hearings, was in the first two years of the George W. Bush administration.

46 This information was collected from every Circuit Court hearing starting in 1980. These hearings can be found in the Senate Reports from the Senate Judiciary Committee. They are typically labeled something like Confirmation of Federal Judges, Before the S. Comm. on the Judiciary, 97th Cong. (1983). Three hearings are in individual reports. See Confirmation Hearing on the Nomination of Brett Kavanaugh to be Circuit Judge for the District of Columbia Circuit Before the S. Comm. on the Judiciary, 109th Cong. (2006); Confirmation Hearing on the Nomination of Thomas B. Griffith of Utah to be Circuit Judge for the District of Columbia Circuit Before the S. Comm. on the Judiciary, 109th Cong. (2007); Confirmation Hearing on the Nomination of William G. Meyers of Idaho to be Circuit Judge for the Ninth Circuit Before the S. Comm. on the Judiciary, 109th Cong. (2005). Hearings from the 115th Congress are not yet in a report. The transcripts from many of those hearings can be found on proquest congressional. For those hearings that have not been transcribed, videos of the hearings can be found on the Senate Judiciary Committee’s website. 47 A Chi-Square Test, which tests for whether these variables are related, returns a p-value of 5.04 x 10^-14. A P-Value of 0.05 is generally considered statistically significant.

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But the number of hearings does not tell the whole story. Different administrations prioritize judicial nominations differently and some run into more opposition in Congress than others. Figure 2 shows the percentage of Circuit Court hearings, by session of Congress, in which a nominee was asked directly about abortion.

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Fig. 2

Percentage of Hearings in Which the Nominee Was Asked Direcetly About Abortion 60.00% 54.05%

50.00%

40.00% 33.33%

30.00%

20.00%

12.50% 10.71% 8.70% 10.00% 6.25% 4.55% 5.26%

0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

0.00%

97th 98th 99th

102d 103d

101st

104th 105th 106th 107th 108th 109th 110th 111th 112th 113th 114th 115th 100th

Here again, the first two years of the Trump administration lead the way with over half of these hearings featuring questions about the constitutionality of the Roe line of cases or about the morality of abortion. And again, the first two years of the Bush administration represent the previous high. Once framed as percent of hearings, abortion appears to have played an even greater role in President Bush’s nominees than the previous chart demonstrated. But other than the 107th and 115th session of Congress, nominees were rarely questioned about Roe. Nor were they questioned about abortion more broadly. Figure 3 shows the number of Circuit Court hearings, by session of Congress, in which a nominee was asked about any legal topic related to abortion—for example, buffer zones around clinics or jurisdiction stripping.

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Fig. 3 Number of Hearings in Which the Nominee Was Asked About Abortion or a Legal Issue Related to Abortion 25 22

20

15

10 7 6

5 3 2 2 2 1 1 1 1 0 0 0 0 0 0 0 0

0

97th 98th 99th

102d 103d

101st

104th 105th 106th 107th 108th 109th 110th 111th 112th 113th 114th 115th 100th 48 And Figure 4 shows the percentage of Circuit Court hearings, by session of Congress, in which a nominee was asked about any topic related to abortion.

48 A Chi-Square Test, which tests for whether these variables are related, returns a P-value of 1.21 x 10^-11. A P-Value of less than 0.05 is generally considered statistically significant.

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Fig. 4 Percentage of Hearings in Which the Nominee Was Asked About Abortion or a Legal Issue Related to Abortion

70.00% 59.46% 60.00% 50.00%

40.00% 33.33%

30.00% 21.43% 15.79% 20.00% 12.50% 8.70% 6.45% 10.00% 4.55% 6.25% 5.56% 6.25% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00% 0.00%

0.00%

97th 98th 99th

102d 103d

101st

105th 100th 104th 106th 107th 108th 109th 110th 111th 112th 113th 114th 115th

Although this broader definition of questioning nominees about abortion gets more results, it still shows a sharp uptick in the 115th Congress. And the 107th Congress is still the second highest. These graphs make it clear that until the 115th Congress nominees were not commonly asked for their views on abortion or the law of abortion. These data conflict with the common narrative surrounding Circuit Court confirmation hearings. Going back to at least the Clinton administration, the perception has been that

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nominees are routinely hammered for their views on abortion.49 To the extent this occurred, it was not during live questioning at a nominee’s hearing but in written questions for the record submitted to the nominee after the hearing. 50 Though, to be clear, written questions about abortion also appear very infrequently and appear to have been the work of only a few senators. A review of the transcripts of these hearings also reveals this change. Hearings are now longer and more contentious than they were even in the early 1990s. Justice Alito’s testimony from when he was nominated to the Third Circuit takes up about two pages in the senate report.51 Senators Edward Kennedy and Arlen Specter are the only two senators who question him, and much of those two pages is Senator Kennedy either complimenting Alito on his resume or joking with Alito’s son Phillip and inviting him to sit with his father for the hearing.52 In contrast, hearings are now often over an hour long, 53 and senators on the Senate Judiciary Committee routinely complain that they are only given five minutes to question Circuit Court

49 See, e.g., Sarah Wilson, Appellate Judicial Appointments During the Clinton Presidency: An Inside Perspective, 5 J. APP. PRAC. & PROC. 30, 35 (2001) (“[T]he paramount concern of the Republican members of the Senate Judiciary Committee during this period was judicial activism, which they defined as judicial decision-making based not on settled law but rather on the personal political beliefs and ideological views of the nominees. Republican senators interrogated nominees about several “hot button” social issues that have been the subject of controversial appellate or Supreme Court rulings, most notably abortion, the death penalty, affirmative action, discrimination on the basis of sexual orientation, mandatory minimum sentencing, prison litigation reform, and voter initiatives.”) (emphasis added). 50 Confirmation Hearings on Federal Appointments Part 1 Before the S. Comm. on the Judiciary, 106th Cong. (1999) Responses of Marsha S. Berzon to Questions from Sen. Ashcroft (“Is Roe v. Wade, 410 U.S. 113 (1973) an example of judicial activism?”) 51 Confirmation Hearings on Federal Appointments Part 5 Before the S. Comm. on the Judiciary, 101st Cong. 574-76 (1991). 52 Id. 53 See, e.g., Nominations, HEARINGS, Committee on the Judiciary (Oct. 17, 2017) https://www.judiciary.senate.gov/meetings/10/17/2017/nominations.

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nominees. 54 That, combined with the trend of asking for pre- commitments on substantive legal issues like abortion and seizing on what the senators can cast as a nominee’s professional or personal failings—for example Ryan Bounds’s college writings 55 or Amy Coney Barrett’s Catholicism 56 —make for a radically different atmosphere in the confirmation hearings of the past two years. This is not to say that a nominee’s ideology did not affect her confirmation during earlier sessions of Congress. That was clearly not the case. For example, Republican senators worked to delay the confirmation of President Clinton’s nominees. 57 They also demanded Judge Betty Fletcher take senior status before they would confirm her son, Judge William Fletcher, to the Ninth Circuit because of concerns about stacking the court with liberal judges.58

54 See, e.g., Hrg. Transcript, Sen. Judiciary Comm. Hrg. on Judicial Nominations of Oldham, Albright, Kleesh, Phipps, & Truncale at 22 (Apr. 25, 2018) https://congressional- proquestcom.proxy.library.nyu.edu/congressional/docview/t65.d40.04250018.u51? accountid=12768 (https://congressional- proquestcom.proxy.library.nyu.edu/congressional/docview/t65.d40.04250018.u51? accountid=12768) (“[Sen.] BOOKER: I'm speaking to interrupt him, they only give me five minutes…”); Hrg. Transcript, Sen. Judiciary Comm. Hrg. on Judicial Nominations of Duncan, Stras, Rodriguez & Iancu at 30 (Nov. 29, 2017) https://congressional- proquestcom.proxy.library.nyu.edu/congressional/docview/t65.d40.11290003.u72? accountid=12768 (https://congressional- proquestcom.proxy.library.nyu.edu/congressional/docview/t65.d40.11290003.u72? accountid=12768) (“[Sen.] KENNEDY: OK, both good judges. All right. Let me get this one out of the way because this five minutes goes real fast.”). 55 Maxine Bernstein, Oregon nominee for 9th Circuit Appeals Court under fire for racial 'hostility' in college writings, THE OREGONIAN (Feb. 10, 2018) https://www.oregonlive.com/portland/2018/02/advocacy_group_slams_ryan_boun.html; David Lat, In Defense of Ryan Bounds, ABOVE THE LAW (Jul. 20, 2018) https://abovethelaw.com/2018/07/in-defense-of-ryan-bounds/. 56 Carrie Severino, “The Dogma Lives Loudly Within You” (Part 1), § (Jan. 3 2019) https://www.nationalreview.com/bench-memos/the-dogma-lives-loudly-within-you-part-1/ (quoting Senator Diane Feinstein as telling Judge Barrett “the dogma lives loudly within you, and that’s a concern.”). 57 BENJAMIN WITTES, CONFIRMATION WARS: PRESERVING INDEPENDENT COURTS IN ANGRY TIMES 39 (2006) 58 Id. at 8.

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Nor is this to say that senators have never before used confirmation hearings to explore a nominee’s ideology or personal characteristics. When Priscilla Owen was nominated to the Fifth Circuit in 2003, abortion dominated her confirmation hearing. 59 And, as shown above, this was true of several of George W. Bush’s other Circuit Court nominees. It was only after four years of delay and extensive negotiation that Judge Owen was confirmed to the Fifth Circuit.60 But the fact that nominees are now routinely asked to commit to how they would rule on abortion cases is a break from the past. And that fact is worth exploring.

II. WHY ASK ABOUT ROE? On the surface, asking a Circuit Court nominee about Roe makes no sense. The Roe right is a creation of the Supreme Court, and Circuit Court nominees, as they routinely tell the senators at their hearings, are bound to follow Supreme Court precedent. Thus, it does not matter if a Circuit Court nominee thinks Roe was correctly decided: They cannot overrule it. And, of course, no nominee ever answers the question. Just like Supreme Court nominees, Circuit Court nominees demur when asked about the correctness of Supreme Court precedents. They correctly refuse to rate different Supreme Court cases and instead pledge to follow all Supreme Court precedent fully and faithfully. It would be improper, they say, for them to criticize the Supreme Court

59 Confirmation Hearings on Federal Appointments Part 4 Before the S. Comm. on the Judiciary at 1026, 107th Cong. (2003). 60 Judge Owen was first nominated in 2001. PN397 — Priscilla Richman Owen — The Judiciary, Congress.Gov https://www.congress.gov/nomination/107th- congress/397/actions?s=3&r=28&overview=closed. She was confirmed to the Fifth Circuit in 2005. Roll Call Vote 109th Congress - 1st Session, Senate.Gov, https://www.senate.gov/legislative/LIS/roll_call_lists/roll_call_vote_cfm.cfm?congress=109 &session=1&vote=00128.

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or for them to give future litigants the impression that they will not be objective and open to all arguments. Nevertheless, the senators persist. What follows is an explanation as to why the senators have only recently started routinely asking about abortion even though their questions go unanswered. Parts A, B, C, and D describe factors that are likely driving senatorial interest in nominees’ views of abortion. Part E describes changes to the confirmation process that have channeled this interest and opposition into the confirmation hearing. It is the combination of these factors—opposition and how current Senate procedure forces senators to express it—that has led to this abrupt change in Senate practice.

A. THE UNDUE BURDEN REGIME When the Supreme Court decided Roe v. Wade in 1973, the Court declared that the right to an abortion was a fundamental right protected by the United States Constitution. 61 Thus, there are constitutional constraints on how states and the federal government can regulate abortion. Throughout the 1970s and 1980s the Supreme Court regularly heard cases about state regulation of abortion. 62 Finally, in 1992, the Court heard and decided Planned Parenthood of Southeastern Pennsylvania v. Casey.63 In Casey, the Court reaffirmed the central holding of Roe64 but announced a new test to determine whether a state’s regulation of abortion was constitutionally permissible—the undue burden test.65

61 Roe, 410 U.S. at 153. 62 Timeline of Important Reproductive Freedom Cases Decided by the Supreme Court, ACLU, https://www.aclu.org/other/timeline-important-reproductive-freedom-cases-decided-supreme- court. 63 505 U.S. 833 (1992). 64 Id. at 853. 65 Id. at 874.

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The Court then stopped regularly hearing cases that implicated the Roe right. Although there were cases addressing issues related to abortion—for example the constitutionality of buffer zones in Hill v. Colorado66— between when Casey was decided and the end of the 115th Congress the Court only addressed the undue burden test in four cases: Mazurek v. Armstrong,67 Stenberg v. Carhart (Carhart I),68 Gonzales v. Carhart (Carhart II), 69 and Whole Women’s Health v. Hellerstedt.70 Mazurek v. Armstrong was a brief per curium opinion applying language that came directly from Casey that said that states are permitted to decided that abortions may only be provided by licensed professionals.71 In Mazurek, that meant it was not an undue burden for Montana to require someone to be a physician before they can perform a first-trimester abortion.72 This was also in line with abortion cases that predated Casey.73 Carhart I held that a Nebraska statute that banned the use of the Dilation and Extraction method of abortion (also known as a D & X, an intact D & E, or a partial-birth abortion) placed an undue burden on Nebraska women’s right to an abortion because the statute’s language was broad enough to cover Dilation and Evacuation procedures (also known as D & Es), which is the most common procedure used to perform a pre-viability second-trimester abortion.74

66 530 U.S. 703 (2000). 67 520 U.S. 968 (1997). 68 530 U.S. 914 (2000). 69 127 S. Ct. 1610 (2007). 70 136 S. Ct. 2292 (2016). 71 520 U.S. at 973. 72 Id. 73 Id. at 974. 74 Carhart I, 530 U.S. at 938-46.

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Congress responded to this decision by crafting the Partial-Birth Abortion Act of 2003.75 That act prohibits the use of the Dilation and Extraction procedure but does not prohibit the more common Dilation and Evacuation procedure.76 In the Act’s findings, Congress said it passed the act because it thought D & X to be a “brutal and inhumane” procedure and it wanted to express respect for the dignity of human life. 77 Under Casey, regulations that “express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.”78 Consequently, the Court in Carhart II found that Congress had a legitimate interest in passing the Partial-Birth Abortion act and that there was a benefit to the law.79 The Court also concluded that the Act did not impose an undue burden on women because it did not proscribe alternative pre-viability second-trimester abortion procedures.80 The Court next addressed the undue burden test in Whole Women’s Health. That case made it clear that the undue burden test “requires that courts consider the burdens a law imposes on abortion access together with the benefits those laws confer.”81 Because the Court concluded that the Texas Act at issue provided “few, if any, benefits” and imposed “a substantial obstacle to women seeking abortions,” it constituted an undue burden on their right to an abortion.82

75 18 U.S.C. § 1531. 76 Carhart II, 550 U.S. at 150. 77 Id. at 157. 78 Casey, 505 U.S. at 877. 79 Carhart II, 550 U.S. at 158-160. 80 Id. at 164. The Court also found that there was significant medical uncertainty as to the benefits of the D & X procedure. This too helped the Court conclude that banning the procedure did not impose an undue burden on women. Id. at 164. 81 Whole Women’s Health, 136 S. Ct at 2309. 82 Id. at 2318.

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Carhart II and Whole Women’s Health are bookends. In Carhart II the Court found that a regulation did not impose an undue burden if it had legitimate benefits—in that case expressing respect for human life—and insignificant burdens because there were alternative ways for women to get abortions. In Whole Women’s Health the Court found that a regulation did impose an undue burden because the law at issue provided no or insignificant benefits and imposed burdens on women seeking an abortion. These cases represent the extremes. What they do not do is provide guidance for cases in the middle: a law that has both legitimate benefits and imposes burdens. Thus, big questions remained unanswered after Whole Women’s Health. First, when deciding if a law is an undue burden, is it undue merely if the burdens outweigh the benefits? Or do the burdens have to substantially outweigh the benefits—as the court thought they did in Whole Women’s Health? Put another way, in a close case should the Court defer to the judgment of elected representatives or should the Court aggressively enforce the Roe right? Second, although the Court in Whole Women’s Health said that the benefits of a law restricting abortion access have to be balanced against its burdens, the Court did not say how to quantify a law’s benefits and burdens. Going back to Roe, the state clearly has an interest in seeing that abortions, like other medical procedures, are performed safely.83 While this wasn’t an issue in Whole Women’s Health because the Court found there were no medical benefits to the law at issue in that case,84 quantifying medical benefits can be tricky. Although experts may be able to estimate how many lives will be saved by a given regulation or how many mistakes will be avoided, the court will have to come up with some way of assigning those benefits a value. The law’s burdens, of course, will also have to be

83 Roe, 410 U.S. at 150; Whole Women’s Health, 136 S. Ct. at 2309. 84 Whole Women’s Health, 136 S. Ct. at 2311.

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assigned some value by the court. And then the court will have to balance the benefits and the burdens. None of the Supreme Court cases that address the undue burden standard provide guidance on how to assign such values. Relatedly, Roe itself says that the state has an “important and legitimate interest in protecting the potentiality of human life.”85 Casey reaffirmed that language repeatedly saying that the state has “a legitimate interest in promoting the life or potential life of the unborn.”86 How should a court quantify the benefits of a law that promotes life or potential life, and how should a court weigh those benefits against the burdens a law imposes on women’s access to abortion? Although Casey says that these principles do not contradict one another,87 that cannot be so: There is an inescapable tension between those two values. Even if there were not, how can a judge balance those interests without referencing her own moral or philosophical ideas about life and abortion? Or put another way, how can a judge balance those interests without defining the “concept of existence, of meaning, of the universe, and of the mystery of human life.”88 As Justice Scalia said in Carhart I, the undue burden test “is a value judgment, dependent on how much one respects (or believes society ought to respect) the life of a . . . fetus, and how much one respects (or believes society ought to respect) the freedom of the woman who gave it life to kill it.”89 Depending on one’s politics, one might quibble with Justice Scalia’s language, but he was absolutely correct in describing the undue burden test both then and now. In short, the undue burden standard accomplishes two things: First, courts decide how states can regulate abortion, and second,

85 Roe, 410 U.S. at 162 86 Casey, 505 U.S. at 870. 87 505 U.S. at 846. 88 Id. at 851. 89 Carhart I, 530 U.S. at 954-55 (Scalia, J. dissenting).

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they have wide latitude for judicial policymaking and value judgments when deciding whether to permit a regulation on abortion. A judge at her confirmation hearing can quite honestly say that she intends to “follow the law” as laid out in Roe, Casey, and Whole Women’s Health and still have a huge amount of room to exert her policy preferences. In fact, those decisions require her to exercise value judgments when balancing the benefits and burdens of an abortion regulation. Thus, it is a rational response to the current system of abortion regulation for senators to inquire into a nominee’s views on abortion. 90 Justice Scalia foretold this system for selecting judges in his dissent in Casey:

[T]he American people love democracy and the American people are not fools. As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers' work up here—reading text and discerning our society's traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. But if in reality our process of constitutional adjudication consists primarily of making value judgments . . . then a free and intelligent

90 Since the end of the 115th Congress, the Supreme Court decided June Medical Services L. L. C. v. Russo, 140 S. Ct. 2103 (2020). Because June had not been decided, it was not a condition that affected the 115th Congress, and, therefore, is not addressed in detail here. Nevertheless, it is worth noting that June has added to the uncertainty around the undue burden test rather than clarifying what the law is—namely, it is unclear whether Justice Breyer’s plurality opinion or Chief Justice Roberts’s concurrence is the controlling opinion in June. Compare Whole Woman's Health v. Paxton, No. 17-51060, 2020 U.S. App. LEXIS 26738, at *6 (5th Cir. Aug. 21, 2020) with id. at *12 (Willet, J. dissenting). Thus, it is unclear whether the Whole Women’s Health standard or the Casey standard controls. That question will have to be resolved by the Supreme Court. In the meantime, that uncertainty—like the other uncertainties noted here—creates space for judges to exert their policy preferences.

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people's attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school—maybe better. If, indeed, the “liberties” protected by the Constitution are, as the Court says, undefined and unbounded, then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question-and-answer sessions in which senators go through a list of their constituents' most favored and most disfavored alleged constitutional rights, and seek the nominee's commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward.91 But while this is a clean theory, it does not fully explain senatorial behavior. Although senators ask about a nominee’s views of Roe, abortion, and a constitutional right to privacy, as noted above they almost never ask about Casey, Whole Women’s Health, or the undue burden standard. Only one nominee in the 115th Congress, Judge Grasz, was asked what an undue burden was. If the senators were really cognizant of the nuances of the current legal regime and were responding to that regime, they would ask more relevant questions. What is more, Roe was decided in 1973 and Casey was decided in 1992. Senators only began regularly grilling Circuit Court nominees about abortion in 2017. That is a long delay between the creation of the Roe right or the creation of the undue burden standard and

91 Casey, 505 U.S. 1000-01 (Scalia, J. dissenting).

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senators asking lower court nominees questions about abortion. Though, of course, they have been questioning Supreme Court nominees about this issue for a long time. That said, senators clearly recognize that the right to an abortion is a judicially created and judicially managed right. Therefore, the right is one that might—from the pro-choice perspective—be threatened if opponents of abortion were to be confirmed to the federal bench. Or—from the pro-life perspective—the sin of Roe could be extended if pro-choice nominees were confirmed. Were the right to abortion explicitly written into the constitution, asking nominees about it would be pointless—nominees are never grilled on the nineteenth amendment. Alternatively, if Roe were overruled there would not be a need for the senators to ask about abortion. In sum, the state of the law with respect to the constitutionality of abortion is a necessary condition for senatorial questioning. But it does not by itself explain senatorial conduct.

B. THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT, THE DECLINE OF PATRONAGE, AND THE CHANGING COMPOSITION OF THE COURTS There are a variety of reasons to appoint a particular judge to the federal bench. Presidents have nominated a person because she would diversify the bench. Or because of her qualifications. Or because her ideology matches his. Patronage has historically been a significant driver of judicial appointments. In the Trump administration, ideological commitments have been prioritized. The change to ideologically conservative, as opposed to merely Republican, judges is enormous. At least since the Nixon administration Republicans have sought to appoint judges who

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reflected their values and principles.92 Despite this goal, Republican administrations prior to the Trump administration have had mixed success in appointing these kinds of judges. This was due, in part, to the lack of a coherent conservative theory of law. Textualism and Originalism, after decades of refinement, now fill that void. This was also partially due to a difficulty in identifying judges who were ideologically committed to these ideas. Membership in organizations such as the Federalist Society now act as a signaling mechanism to administration officials that the candidate likely has these ideological commitments.93 These organizations are also a network potential candidates can tap into to try and get noticed and the administration can tap into to inquire as to a candidate’s reputation. Thus, although the Federalist Society does not have a formal role in the selection of judges, the network it has fostered over the past forty years does have an informal role in the selection and screening of judicial candidates. This network was first tapped into during the George W. Bush administration. Although prior Republican presidents prioritized judicial nominations and chose judges based in part on ideology, the Federalist Society network was not as well developed during those years as it was when Bush became president. This is not to say that the Federalist Society did not have members in earlier administrations—far from it, Lee Liberman Otis (a founder of the Federalist Society) worked on judicial selections in the White House Counsel’s office for George H.W. Bush.94 But until the George W. Bush administration the Federalist Society was too young to be a network from which a Republican president could draw judicial appointments.

92 STEVEN M. TELES, THE RISE OF THE CONSERVATIVE LEGAL MOVEMENT: THE BATTLE FOR CONTROL OF THE LAW 1 (2008). 93 Id. at 159. 94 Greenburg, supra note 25, at 98.

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The concern that Democrats and liberals of that era had about the possibility of a change in the makeup of the federal courts is proof of this change in the source of federal judicial nominees. In April 2001, before George W. Bush had nominated a single person to the federal bench, forty two of the fifty Democrats then in the Senate attended a weekend retreat in Farmington, Pennsylvania to formulate a strategy to defeat George W. Bush’s judicial nominees.95 Cass Sunstein and Larry Tribe were also in attendance and warned the senators “the nation's courts were at a historic juncture because, they said, a band of conservative lawyers around Mr. Bush was planning to pack the courts with staunch conservatives.”96 Professor Sunstein later went on to write about the “radicals in robes”97 and the conservative “judicial activism”98 of the George W. Bush era. In his view, “the nation [was] in the midst of a period of right-wing judicial activism, more extreme than any such period since the New Deal itself”, and unless people “[came] to see what the nation stands to lose” much worse could be on the way.99 Professor Sunstein wasn’t concerned about Republican lawyers who might receive a judicial appointment through patronage. Rather, he was concerned about judges he considered to be “Fundamentalists.”100 In other words, he was worried about the kind of judges the Federalist- Society-affiliated lawyers in the Bush White House would favor. And that was during an administration that was willing to cut deals with the opposition party on judicial appointments—for example,

95 Neil A. Lewis, Washington Talk; Democrats Readying for Judicial Fight, N.Y. TIMES (May 1, 2001). 96 Id. 97 CASS R. SUNSTEIN, RADICALS IN ROBES: WHY EXTREME RIGHT-WING COURTS ARE WRONG FOR AMERICA (2005) 98 Cass R. Sunstein, Taking Over the Courts, N.Y. TIMES (Nov. 9, 2002) https://www.nytimes.com/2002/11/09/opinion/taking-over-the-courts.html. 99 Cass Sunstein, The Right-Wing Assault, Prospect (Feb. 19, 2003) https://prospect.org/article/right-wing-assault. 100Sunstein, supra note 97, at 25-27.

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the appointment of Judge Gregory to the Fourth Circuit (who was originally a Clinton recess appointment)— 101 or the Gang of 14 compromise to save the filibuster for judicial nominations.102 The Trump Administration is leveraging the same network as the George W. Bush administration, but it is not compromising with the opposition party on Circuit Court nominees, and it is not using Circuit Court seats as patronage positions. And this younger generation of conservative lawyers sees the federal courts as a key battleground in our constitutional system.103 Nearly all of President Trump’s nominees are intellectually serious and ideologically conservative. They have been brought up in the Federalist Society ecosystem. They are young and will be able to hold these positions for years to come. Nominee after nominee clerked on the Supreme Court and has a short but distinguished career—for example, David Stras who clerked for Justice Thomas and was a Minnesota Supreme Court Justice,104 or Andrew Oldham, who clerked for Justice Alito and was the deputy solicitor general for the state of Texas before he was General Counsel to Governor Abbott, 105 or Allison Jones Rushing, who clerked for Clarence Thomas and was a partner at Williams & Connolly.106 Since most originalists consider Roe to have been wrongly decided, 107 this influx of more ideologically originalist judges

101 Toobin, supra note 43, at 304 (2008). 102 Id. at 309-310. 103 SARAH A. BINDER & FORREST MALTZMAN, ADVICE AND DISSENT 97 (2009) (concluding that the selection of judges is no longer a matter of patronage even for district court nominees). 104 David Stras, United States Senate Committee on the Judiciary Questionnaire for Nominees https://www.judiciary.senate.gov/imo/media/doc/Stras%20SJQ.pdf. 105 Andrew Oldham, United States Senate Committee on the Judiciary Questionnaire for Nominees https://www.judiciary.senate.gov/imo/media/doc/Oldham%20SJQ1.pdf. 106 Allison Jones Rushing, United States Senate Committee on the Judiciary Questionnaire for Nominees https://www.judiciary.senate.gov/imo/media/doc/Rushing%20SJQ.pdf 107 See, e.g., Michael McConnell, Roe v. Wade at 25: Still Illegitimate, Wall Street J. (Jan. 22, 1998) (“The reasoning of Roe v. Wade is an embarrassment to those who take constitutional law seriously.”)

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jeopardizes the Roe right. That does not mean that all originalists are pro-life. Indeed, there are many people who think Roe doesn’t make sense as a legal opinion and still support abortion rights—for example, John Hart Ely who wrote that Roe is "not constitutional law and gives almost no sense of an obligation to try to be."108 But if these judges really are ideologically committed to originalism it may not matter if they are personally pro-choice: They may still view reining in Roe’s excesses as part of their duty to uphold the constitution.109 Although Circuit Courts are constrained by Supreme Court precedent, as mentioned above, the state of the law after Whole Women’s Health is so unclear that they have lots of room to maneuver. This is not the nominee’s fault. In fact, one might view a commitment to a particular interpretation of the constitution divorced from policy preferences as a credit to the nominee. Nevertheless, the pro-choice lobby and pro-choice senators have reason to view these nominees with suspicion if what they want is to maintain the status quo with respect to Roe.

C. ACTIVISTS AND POLARIZATION To state the obvious, abortion is a major political issue at all levels of government. Presidents discuss it in the State of the Union address.110 When New York State passed the Reproductive Health Act, a law that dramatically loosened New York’s abortion laws, Governor Andrew Cuomo had One World Trade Center lit up pink

108 Id. 109 See Greenburg, supra note 25, at 251. 110 Nicholas Fandos, Jon Huang, Thomas Kaplan & Katie Rogers, Transcript: Trump’s State of the Union, Annotated, N.Y. TIMES (Feb. 5 2019) https://www.nytimes.com/interactive/2019/02/05/us/politics/trump-state-of-union-speech- transcript.html.

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to commemorate the event.111 When the New York Times Editorial Board endorsed Jumaane Williams for New York City Public Advocate, the Board noted his pro-choice track record. 112 This, despite the fact that New York City’s public advocate position has nothing to do with abortion and no power to regulate or deregulate access to abortion. And all those events happened in February 2019. But abortion has been a hot-button issue for years. Ronald Reagan was explicitly pro-life and favored by that group when he was running for president back in 1980.113 What is it about the 115th Congress that is different? Two factors may be the role of activist groups and increased political polarization. Although activist groups—particularly pro-choice groups— have been involved in the confirmation process for a long time, their role has been pronounced in the current administration. The Alliance for Justice, which describes itself as “a national association of 130 organizations, representing a broad array of groups committed to progressive values,”114 produces a report about every Circuit Court nominee. They have opposed many of President Trump’s nominees and have endorsed none.115 NARAL Pro Choice America also tracks and rates judicial nominees,116 as does Planned Parenthood Action Fund.117 Although all of those groups have been

111 Christopher Robbins, Cuomo Signs Historic Abortion Law, Celebrates By Turning One WTC Pink, GOTHAMIST (Jan. 23, 2019) http://gothamist.com/2019/01/23/reproductive_health_act_ny.php. 112 The Editorial Board, The New York Times Endorses Jumaane Williams for Public Advocate, N.Y. TIMES (Fed. 26, 2019) https://www.nytimes.com/2019/02/21/opinion/jumaane-williams- public-advocate-endorsement.html. 113 T. R. Reid, Reagan is Favored by Anti-Abortionists, WASH. POST, Apr. 12, 1980. 114 About AFJ, ALLIANCE FOR JUSTICE https://www.afj.org/about-afj. 115 Reports, ALLIANCE FOR JUSTICE https://www.afj.org/our- work/reports?report_type=nominees&nominee_type=. 116 Trump’s Anti-Choice Judicial Nominees, NARAL PRO CHOICE AMERICA https://www.prochoiceamerica.org/laws-policy/trumps-anti-choice-judicial-nominees/. 117 Courting Disaster: Trump’s Judicial Nominees, PLANNED PARENTHOOD ACTION FUND https://www.plannedparenthoodaction.org/trump-judicial-nominations.

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involved in judicial politics before, technology has made them more powerful. Activist groups can now send out email blasts to their followers to raise funds or incite their constituents to action. Technology also makes it easier for them to recruit and coordinate their members. These groups can connect with their members through Facebook, Instagram, and Twitter. And in turn those technologies make it easier for their members to spread their message even further. Consider the following tweet from the official ACLU account:

ABORTION IS HEALTH CARE. ABORTION IS A RIGHT. ABORTION IS HEALTH CARE. ABORTION IS A RIGHT. ABORTION IS HEALTH CARE. ABORTION IS A RIGHT. ABORTION IS HEALTH CARE. ABORTION IS A RIGHT. ABORTION IS HEALTH CARE. ABORTION IS A RIGHT. ABORTION IS HEALTH CARE. ABORTION IS A RIGHT.118 This tweet generated over 9,600 comments, 17,000 retweets, and 79,000 likes. Planned Parenthood Action has over 500,000

118 ACLU (@ACLU) TWITTER ( Mar. 4, 2019, 9:05 AM), https://twitter.com/ACLU/status/1102615940502601729.

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followers on Twitter.119 Just like President Obama leveraged social media to win the Presidency in 2008,120 these groups are bringing similar tools to bear on the nomination process. And they are doing so for the first time. When President Obama was in office, there was little chance that he would nominate pro-life judges. Additionally, pro-choice voters are nervous. President Trump has repeatedly promised to appoint “pro-life judges.”121 He has also promised to put “pro-life justices” on the Supreme Court with the explicit goal of overturning Roe v. Wade.122 These pledges may make all of his judicial nominees suspect in the eyes of pro- choice advocates. Granted, prior Republican presidents have been openly pro-life. Leading up to the 1984 Presidential election, President Reagan called for a constitutional ban on abortion and compared the issue to the struggle to end slavery.123 George H.W. Bush was more moderate, but his administration’s Department of Justice urged the Supreme Court to overrule Roe.124 George W. Bush also called himself pro- life—though he refused to commit to an abortion litmus test when

119 Planned Parenthood Action (@PPact) TWITTER https://twitter.com/PPact.(September 23, 2020). 120 Mike Memoli, Obama: Innovations that helped elect me now dividing the country, NBC NEWS (Jan 12, 2018) https://www.nbcnews.com/politics/barack-obama/obama-innovations- helped-elect-me-now-dividing-country-n836976. 121 Trump: ‘I Will Be Appointing Pro-Life Judges’, NBC NEWS (Oct. 19, 2016) https://www.nbcnews.com/video/trump-i-will-be-appointing-pro-life-judges-789632067780. 122 Trump: I’ll Appoint Supreme Court Justices to Overturn Roe v. Wade Abortion Case, CNBC (Oct. 19, 2016) https://www.cnbc.com/2016/10/19/trump-ill-appoint-supreme-court-justices- to-overturn-roe-v-wade-abortion-case.html. 123 Francis X. Clines, Reagan Appeal on Abortion Is Made to Fundamentalists, N.Y. TIMES (Jan. 31, 1984) https://www.nytimes.com/1984/01/31/us/reagan-appeal-on-abortion-is-made- to-fundamentalists.html. 124 Sarah McCammon, Looking Back on President George H. W. Bush’s Legacy on Abortion, NPR (Dec. 4, 2018) https://www.npr.org/2018/12/04/673398023/looking-back-on-president- george-h-w-bushs-legacy-on-abortion.

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selecting judges. 125 But none of these former presidents were as brash or explicit as President Trump is. Thus, by speaking plainly and by making pro-life judges a key campaign promise, President Trump guaranteed that pro-choice advocates would closely monitor his judicial selections. Justice Kavanaugh’s confirmation to the Supreme Court has raised these voters’ anxiety levels even further because he took Justice Kennedy’s seat. During Justice Kavanaugh’s confirmation hearings Planned Parenthood orchestrated an ongoing protest across the street from the Dirksen Senate building, 126 women in Handmaid’s Tale outfits swarmed Dirksen, 127 and protestors screamed over Justice Kavanaugh and the senators during his hearing.128 The pro-choice anxiety has not abated since then. For example, the Huffington Post recently published a guide to preparing for the end of Roe v. Wade.129 Thus, by questioning Circuit nominees on Roe, the senators may simply be responding to the anxieties of their constituents and trying to show that they care about these anxieties and are doing something about them. Lastly, the senators themselves may be more concerned about abortion than in the past. 1980 was the first year that the

125 David Corn, Bush’s Abortion Flip-Flop?, THE NATION (Jun 15, 2000) https://www.thenation.com/article/bushs-abortion-flip-flop/. 126 MaryAlice Parks, Women Protesting Kavanaugh Flood Capitol Hill to Tell Personal Stories of Abortion, ABC NEWS (Sept. 7, 2018) https://abcnews.go.com/Politics/women-protesting- kavanaugh-flood-capitol-hill-personal-stories/story?id=57671607 ) (this was before the allegations of sexual misconduct against Justice Kavanaugh were made public). 127 “Handmaids” Protest Kavanaugh Confirmation, CNN (Sept. 27, 2018) https://www.cnn.com/videos/cnnmoney/2018/07/27/protestors-are-wearing-handmaids-tale- costumes-orig-mz-tc.cnn.. 128 Ron Elving, Kavanaugh's Confirmation Hearings: What's Wrong With This Picture?, NPR (Sept. 6, 2018), https://www.npr.org/2018/09/06/645099204/kavanaughs-confirmation- hearings-whats-wrong-with-this-picture. 129 Melissa Jeltsen, How to Prepare for the End of Roe v. Wade, HUFFINGTON POST (Jan. 17, 2019) https://www.huffingtonpost.com/entry/how-to-prepare-for-the-end-of-roe-v-wade- handbook-for-post-robin-marty_us_5c3fa0cae4b027c3bbbdacdf.

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Democratic Party had a clear pro-choice plank in its platform and the Republican party had a clear pro-life plank in its platform.130 Since that time, it has become harder to be a pro-choice Republican or a pro-life Democrat. There are only two pro-choice Republicans left in the Senate, Lisa Murkowski and Susan Collins,131 and three pro-life Democrats,132 and none of these outliers sit on the Senate Judiciary Committee. Thus, the senators on the judiciary committee are not just reacting to the wishes of activists, they are pushing their party’s platform. And they are doing so for maximal gain and no cost. When the Democratic senators question these nominees about abortion, they appease their party, their activists, and, because they are opposing one of President Trump’s major initiatives—confirming judges—they are appealing to their base that is opposed to anything and everything Trump.

D. SENATORS COLLINS AND MURKOWSKI AND THE #RESISTANCE In 2013 opposition to President Obama’s nomination of Judges Cornelia Pillard, Patricia Millett, and Robert L. Wilkins, to the D.C. Circuit led to the elimination of the filibuster for circuit court

130 Donald Granberg & James Burlison, The Abortion Issue in the 1980 Elections, 15.5 FAMILY PLANNING PERSPECTIVES 231, 234 (1983). 131 Matthew Daly & Ken Thomas, Senate friends Susan Collins and Lisa Murkowski, diverge on Kavanaugh vote, CHI. TRIB. (Oct. 5, 2018) https://www.chicagotribune.com/news/nationworld/politics/ct-susan-collins-lisa-murkowski- kavanaugh-vote-20181005-story.html. 132 Jennifer Haberkorn, ‘If You’re A Pro-Life Democrat . . . You Know You’re Standing Alone’, POLITICO (Aug. 3, 2018) https://www.politico.com/magazine/story/2018/08/03/democrats- abortion-pro-choice-life-219154. There may only be two pro-life Democrats in the Senate. Joe Manchin has an unclear and unstable position on abortion. See Johnathan Swan, Joe Manchin's Tightrope on Planned Parenthood, AXIOS (May 8, 2017) https://www.axios.com/joe- manchins-tightrope-on-planned-parenthood-1513302138-68ada8fc-68af-48cb-a5cd- 529b1fc7e68c.html.

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nominees. 133 The elimination of the filibuster for lower court nominees created a system in which a nominee can be confirmed with only 51 votes.134 This means that if the President’s party is in the majority in the Senate, then confirmation will be smooth sailing. And in turn, this means that the President and the members of his party have little incentive to compromise on judicial appointments. President Obama benefited from this in the 113th Congress before Republicans took back the Senate in the 114th. 135 And President Trump benefitted from this in the 115th Congress. It also changed who determined if a nominee was confirmed. When the filibuster was in place for judicial nominees, it took sixty votes to end debate and proceed to a confirmation vote. When this procedure was used, first by Democrats during the George W. Bush administration and then by Republicans during the Obama Administration, it took bipartisan compromise to clear the impasse. But in the 115th Congress, Republicans held either a 51-49 or a 50-49 majority in the Senate and Democrats did not have the option of filibustering. Thus, the presumption set in that a nominee would be confirmed unless opponents of a nominee could persuade at least one or two Republicans to vote against the nominee. There were three prime targets: Susan Collins (R-ME), Lisa Murkowski (R-AK), and Tim Scott (R-SC).

133 Jeffrey Toobin, How Harry Reid Changed the Federal Courts, THE NEW YORKER (Mar. 27, 2015) https://www.newyorker.com/news/news-desk/how-harry-reid-changed-the-federal- courts (describing the significance of removing the filibuster for judicial nominees “Reid has shown the Senate can be made to work. With focus, passion, and relentless attention to the goal before him, he remade the federal judiciary. This living monument to the Democratic leader will stand long after he retires next year.”). Notably, opposition to Judge Pillard was driven in large part by her writings on abortion. See, e.g., Anna Higgins, Cornelia Pillard is Unfit for the D.C. Circuit Court, THE HILL (Nov. 6, 2013) https://thehill.com/blogs/congress- blog/judicial/189326-cornelia-pillard-is-unfit-for-the-dc-circuit-court. 134 Id. 135 Id.

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Senator Scott was the only black Republican senator in the 115th Congress.136 When he decided that he would not vote to confirm Ryan Bounds to the Ninth Circuit after Mr. Bounds’s collegiate writings on campus racial politics surfaced, Republicans were forced to withdraw Mr. Bounds’s nomination: They didn’t have the votes.137 This signaled to Senate Democrats and activists that past comments on race could be a path to blocking a nominee’s confirmation—even if the comments were over twenty years old and from when the nominee was in college. Since then, a number of nominees have been attacked for allegedly racially insensitive comments: For example, Judge Kenneth Lee, who was confirmed in June 2019 and who is Korean American, was criticized for similar college writings.138 This tactic is even more pronounced with respect to abortion. Senators Collins and Murkowski are the only pro-choice Republicans left in the Senate.139 Both said that they would not vote for Justice Kavanaugh if they believed that he would overrule Roe v. Wade.140 These comments made them prime targets in the battle over Justice Kavanaugh’s confirmation. Similarly, both were key votes in the 115th Congress to confirm or deny any judicial nominee. Thus, the

136 Sean Sullivan, Sen. Tim Scott tells fellow Republicans: Do better on judicial nominees, Wash. Post (Dec. 8, 2018) https://www.washingtonpost.com/powerpost/sen-tim-scott-tells- fellow-republicans-do-better-on-judicial-nominees/2018/12/08/e43142e0-fa4b-11e8-863c- 9e2f864d47e7_story.html?utm_term=.e662184b461c. 137 Karoun Demirjian, White House withdraws judicial nominee Ryan Bounds, after GOP realizes he didn’t have votes for confirmation, Wash. Post (Jul. 19, 2018) https://www.washingtonpost.com/powerpost/senate-gop-withdraws-judicial-nominee-ryan- bounds-delivering-a-blow-to-trumps-court-plans/2018/07/19/0d81ff50-8b83-11e8-8aea- 86e88ae760d8_story.html?utm_term=.8180281689b6. 138 The Editorial Board, Kenneth Kiyul Lee’s White Privilege, Wall St. J. (Mar. 4, 2019) https://www.wsj.com/articles/kenneth-kiyul-lees-white-privilege-11551741146. 139 Daly & Thomas, supra note 133. 140 Jennifer Rubin, Collins and Murkowski Won’t Fool Concerned Constituents, Wash. Post (Sept. 14, 2018) https://www.washingtonpost.com/news/opinions/wp/2018/09/14/collins-and- murkowski-wont-fool-concerned-constituents/?utm_term=.6d66cdcce761.

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focus on abortion in committee hearings may in part reflect the strategic importance of Senators Collins and Murkowski. Given that the Trump administration has made it a priority to confirm judges, it stands to reason that the Democratic party, which is virulently opposed to anything and everything the President does, would make it a priority to try and frustrate one of his major initiatives. If hammering nominees on abortion and hoping they slip up is a way to try to do that—by picking off the swing votes of Murkowski and Collins—then the questioning may represent generalized opposition to the President as much as it reflects a specific concern about Roe.

E. CHANGES TO THE CONFIRMATION PROCESS The last and most important factor to consider is that the confirmation process itself has changed in the past few years. Historically there have been a number of points in the nomination and confirmation process where a senator who opposed a nominee could prevent that nominee from getting on the bench. First, a senator can informally advise the President on whom he should nominate. Different administrations have taken different views on soliciting senators for advice and some Democratic senators have complained that the Trump administration has not sought their advice on Circuit Court nominees.141 Second, a home-state senator could choose to not return a blue slip. Blue slips are a Senate practice. The Senate Judiciary Committee sends the two senators that represent the state where a nominee will sit blue pieces of paper asking whether they will consent to that judge

141 Sarah D. Wire, California Sens. Feinstein and Harris oppose Trump’s 9th Circuit nominees, L.A. Times (Jan. 31, 2019) https://www.latimes.com/politics/la-na-pol-ninth-circuit-nominees- 20190131-story.html.

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being confirmed to sit in their state.142 If a senator either does not return the blue slip or returns it and says that she opposes the nominee, the practice of past chairmen of the Senate Judiciary Committee has been to not schedule a hearing out of courtesy to their fellow senators.143 This practice has had many iterations. Some chairs of the Senate Judiciary Committee just take the blue slips under advisement. 144 Some chairs require the approval of both home state senators before scheduling a hearing. Some chairs require only the approval of one senator. At least once during the Trump administration, the chair has ignored the disapproval of home state senators all together.145 This is in response to what many view as abuse of the blue slip. During both the George W. Bush administration and the Obama administration there were contentious fights in the Senate about the blue slip practice because some used the practice as a way to prevent the administration’s nominees in general, rather than to express concern about a particular nominee. Thus, in this administration, blue slips are no longer a viable way for a senator to express her opposition. Third, the chair of the Senate Judiciary committee could refuse to hold a confirmation hearing. Because hearings have been treated as a pre-requisite for a floor vote in recent years, refusals to hold hearings have prevented nominees from advancing. This was a method of opposition Republicans used during the Clinton

142 Binder & Maltzman, supra note 103 at 35. 143 Id. 144 Thomas Jipping, Blue Slips 101 (Again), Heritage Foundation (Mar. 1, 2019) https://www.heritage.org/courts/commentary/blue-slips-101-again. 145 Deanna Paul, ‘Damaging precedent’: Conservative federal judge installed without consent of home-state senators, WASH. POST (Feb. 28, 2019) https://www.washingtonpost.com/politics/2019/02/27/dangerous-first-conservative-judge- installed-after-vetting-by-only-two-senators/?utm_term=.c5a669ca0025; See also Jipping, supra note 155.

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Administration.146 Republican control of the Senate, and therefore the Senate Judiciary Committee, during the 115th Congress deprived the opposition of this tool. Fourth, after a nominee has been referred by the Senate Judiciary Committee to the rest of the senate, any senator can put a hold on that nomination. Floor holds delay debate and a vote on the nomination. 147 Senators can do this anonymously and without giving a reason. This practice, like the blue slip, became a way in the past to delay or block the opposing party’s nominees. The effectiveness of this tactic has been limited in this administration because the Senate is under Republican control and the Majority Leader can still choose to ask for unanimous consent to call up the nomination in an executive session.148 Lastly, there was the filibuster. Senate practice for many years required sixty votes to end debate on a judicial nominee. But until the George W. Bush administration no lower court nominee had ever been successfully filibustered.149 That changed with a group of ten nominees in the 107th Congress. Once Democrats made it clear that they were willing to filibuster nominees who otherwise would receive a majority of the votes in the Senate, that initiated a conversation about whether the Senate should eliminate the filibuster for judicial nominees.150 That did not happen in Bush administration. A group of senators—the “Gang of Fourteen”—came together and negotiated a deal on judicial nominees that kept the filibuster in place. 151 But when Republicans used the filibuster to block President’s Obama’s

146 LEE EPSTEIN & JEFFREY A. SEGAL, ADVICE & CONSENT: THE POLITICS OF JUDICIAL APPOINTMENTS 25 (2005). 147 See Binder & Maltzman, supra note 103 at 56. 148 Id. 149 Lee & Epstein, supra note 147 at 25. 150 Id. 151 Binder & Maltzman, supra note 103 at 100-01.

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nominees, no equivalent deal was reached and Senate Democrats eliminated the filibuster for executive branch officials, District Court nominees, and Circuit Court nominees. 152 Accordingly, opposing senators no longer have this tool. What tools are left for the opposition? Four things: Senators can express their opposition to a nominee during her hearing, in the press, in debate, and by voting against the nominee. They can also use the hearing and the press to try and paint the nominee in a bad light so that they can recruit more votes to oppose the nominee. But other than that, there is no way for a senator to express her opposition and certainly no way to do so such that the nominee is not confirmed. Thus, by eliminating sub rosa forms of opposition—advice, blue slips, holds, and the filibuster—opposition has been channeled into the public eye. Framed thus, all the factors listed above—the undue burden standard, polarization between the parties, etc.—are opposition inputs. They drive the fact, and magnitude, of opposition. Changes to the process are opposition conduits—they determine how a given level of opposition manifests. Call this the hydraulic theory of opposition: There will be opposition and, depending on how the confirmation process is structured, that opposition will manifest in different ways. Because all other tools have been taken off the table, contentious confirmation hearings are now how that opposition manifests.153

152 See Toobin, supra note 122. 153 Although the filibuster for District and Circuit Court nominees was eliminated in 2012, these changes to the confirmation hearing did not manifest until 2017. Two factors explain that lag: (1) It took time for the Senate to adjust to the new procedures and (2) Republicans have controlled the Senate since the 2014 midterm elections. John B. Judis, Here's Why the Democrats Got Crushed—and Why 2016 Won't Be a Cakewalk, The New Republic (Nov. 5, 2014) https://newrepublic.com/article/120138/2014-election-results-heres-why-democrats- lost-senate-gop. Thus, Republicans from 2014-2016 still had sub rosa forms of opposition

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In this way Circuit Court hearings have started to look like Supreme Court hearings. There have never been blue slips for Supreme Court seats because there are no home-state senators. Holds have never been a standard practice for Supreme Court nominees. From 1950, when the Senate Judiciary Committee began to ask all judicial nominees to appear at a hearing,154 until Merrick Garland was nominated in 2016, Supreme Court nominees were given a hearing. They were also, with the exception of the Fortas filibuster,155 voted on. That, along with the press coverage, meant that there were no sub rosa ways to defeat supreme court nominees. One could oppose a nominee on the Senate floor—as Senator Edward Kennedy did when he gave his “Robert Bork’s America” speech. One could oppose a nominee in the press—as various conservatives did when Harriet Miers was nominated.156 One could oppose a nominee in her hearing. Or, as has generally been the case, one could do all the above. That is because the hydraulics of Supreme Court opposition funneled everything out into the open. In short, Circuit Court hearings have started featuring abortion in part because of an actual increase in opposition, but mostly because the Senate has changed its procedures and has forced the senators to express their opposition in confirmation hearings.

available to them in that they could refuse to schedule a confirmation hearing for a nominee or they could refuse to hold a vote on the nominee. Additionally, President Obama, perhaps because he thought his nominees would not be confirmed, only nominated nine people to Circuit Court seats during the 114th Congress. Five were given hearings. Two were confirmed. See Department of Justice Office of Legal Policy, 114th Congress – Judicial Nominations List, https://www.justice.gov/archives/olp/114th-congress-judicial-nominations-list. 154 MARK C. MILLER, JUDICIAL POLITICS IN THE UNITED STATES 59 (2015) (describing the patronage approach to judicial appointments). 155 Lee & Epstein, supra note 147 at 24. 156 See, e.g., William Kristol, What Is to Be Done?, THE WEEKLY STANDARD (Oct. 17, 2005) https://www.weeklystandard.com/william-kristol/what-is-to-be-done-7372 (“George W. Bush's nomination of White House Counsel Harriet Miers to the Supreme Court was at best an error, at worst a disaster.”)

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III. THE ROE QUESTION’S EFFECT ON OTHER PARTS OF THE CONFIRMATION HEARING Currently, confirmation hearings are shaped entirely by the nominees’ desire to avoid answering questions about abortion. Because nominees do not want to talk about abortion—because of judicial ethics and because they do not want to draw attention and criticism—they cannot discuss any issue. This is analogous to when a criminal defendant invokes his Fifth Amendment privilege; unless he does so consistently, he risks giving away important information. Take the following examples based on current hearings:

Dialogue 1: Senator: Was Brown v. Board of Education correctly decided? Nominee: Of course! Brown is an important, seminal decision of the Supreme Court and was correctly decided. Senator: Was Roe v. Wade correctly decided? Nominee: Senator, Roe is a controlling opinion. It is binding precedent. I would apply it fully and faithfully if a case involving Roe or its progeny came before my court. Senator: That is great, but that didn’t answer my question. I asked you if it was correctly decided. Nominee: Senator, I appreciate the question, but I don’t think it would be appropriate for me to signal to future litigants how I might rule in a future case. That would be contrary to judicial independence and the canons of ethics. I can promise I will apply Roe fully and faithfully. Senator: It wasn’t contrary to the canons of ethics to say that Brown was correctly decided. Why can’t you say that Roe was correctly decided? Nominee: Senator it wouldn’t be appropriate as a nominee to a lower court to rank various Supreme Court opinions.

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They are all binding and I will apply all Supreme Court precedent fully and faithfully. Senator: You ranked Brown as an important, seminal decision just moments ago. Why do you refuse to answer the question about Roe? And so on until the Senator’s time has run out. As you can see from this example, as soon as the nominee has given any kind of an answer beyond describing the holding of a case or platitudes about following precedent, she has put herself in a bind. To avoid that result, the dialogue has sometimes gone as follows:

Dialogue 2: Senator: Let me ask you a question a different topic, do you believe that Brown versus Board of Education was correctly decided? Nominee: Senator of course Brown versus the board of education corrected an egregious error, in over ruling Plessy versus Ferguson and separate but equal doctrine ... Senator: Is that a yes? Nominee: Senator, if I ... Senator: Yes or No, do you think it was correctly decided? Nominee: Senator, if I appear before you as a private citizen unbound by the Canons of Conduct that apply to United States Judges I could give you a yes or no answer, but because I'm a judicial nominee I'm not allowed to comment on the merits of Supreme Court. Senator: So, you think it may have been incorrectly decided? Nominee: Senator, even the most universally accepted Supreme Court case is outside the bounds of a federal judge to comment on. That's not --

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Senator: Neil Gorsuch sat before this committee. And when I asked him the same question he said, yes. Are you saying that Neil Gorsuch violated some ethics rule by saying that Brown versus Board of Education was correctly decided? Nominee: Not at all Senator Blumenthal. I'm answering exactly the same way that Justice Gorsuch answered Brown corrected an egregious legal error. It vindicated the dissent of the first John Marshall Harlan and it overruled Plessy versus Ferguson in an abolished segregation in public schools. Senator: Well, that much we know after the first-year law school. I'm asking you, was it correctly decided in terms of what you know. And your way beyond the first-year law school applying the constitutional principles that underlay our democracy. Nominee: Senator Blumenthal there is no space between me and Justice Gorsuch on this. Senator: Well, so you're a yes. Is that right? Nominee: Senator Blumenthal if you're asking me to comment on a Supreme Court case and its merits especially as an inferior court judge then the Canons of Conduct in a line that was articulated by Justice Ginsburg when she sat in this chair before this committee, where she said that her rule as nominee was to give no hence, no previous and no forecasts applies just as much to me. When Justice Kagan sat in this chair, my former law school dean and this committee asked for about Supreme Court cases, she said her role was not to give a thumbs up or a thumbs down to Supreme Court cases. If I was a private citizen, we could lengths about the merits of it. But, even especially for the inferior court judge, if -- when inferior court judge has come before this committee with a list of cases that they like and a list of cases

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that they don't, it turns the structure of Article 3 at the constitutional on its head. Senator: I can't believe that you just gave me that answer. But -- you did give it and all I can say is, I suggest, you go back and read what Neil Gorsuch said to our committee. Thank you, Mr. Chairman.157 This approach gives opposing Senators the opportunity to later make hay out of the fact that the nominee refused to endorse Brown v. Board of Education. And newspapers run with headlines like “Trump Judicial Nominee Won't Say if Brown v. Board of Education Correctly Decided” 158 or “Trump Judicial Nominees Threaten the Legacy of Brown v. Board.”159 Thus, the senator has given the nominee a Sophie’s choice— wade into the abortion debate or allow a senator to paint you as a segregationist. Recently, nominees have caught on to this tactic and have responded to the Brown question by describing it as “a really important precedent of the Supreme Court, and one that overturned Plessy v. Ferguson, which you know was a real black mark on our history." 160 Nevertheless, although nominees will criticize Plessy

157 This is the word for word transcript of Senator Blumenthal questioning 5th Circuit judge Andrew Oldham—including the errors from the transcription. Senate Judiciary Committee Hearing on Judicial Nominations of Oldham, Albright, Kleesh, Phipps, And Truncale (Apr. 25, 2018). Interestingly, although eight different Democratic senators and one Republican senator asked at least one nominee about abortion or a closely related issue during the 115th Congress, Senator Blumenthal asked more nominees about abortion than any other senator. 158 Haslett, supra note 129 159 Derrick Johnson, Trump Judicial Nominees Threaten The Legacy of Brown v. Board, Huffington Post (May 17, 2018) https://www.huffingtonpost.com/entry/opinion-johnson- trump-judicial-brown_us_5afd9c2fe4b0a59b4e01845c. 160 Ariane de Vogue, Judicial nominees are changing their approach to the 'Brown v Board' question at Senate hearings, CNN (Feb. 10, 2019) https://www.cnn.com/2019/02/10/politics/brown-v-board-senate-judicial- nominees/index.html (quoting Judge Neomi Rao at her confirmation hearing).

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they will hold to the line that it would be inappropriate for them to grade various controlling Supreme Court precedents.161 Taken to its logical end—which is not far away—a nominee will be wary of giving a value judgment about any topic because once she stops merely describing something and instead expresses an opinion, that gives the senator questioning her a hook to ask more substantive questions. For example:

Dialogue 3: Senator: Do you like the color blue? Nominee: Senator, blue is a great color. As you can see, I am currently wearing a blue dress. Senator: What do you think about abortion? Nominee: Senator, I don’t think it would be appropriate for me to signal to future litigants how I might rule in a future case. Senator: You can talk about blue. Why can’t you talk about abortion? If this happens, these hearings will go from merely unproductive and unpleasant to farcical.

IV. IS THIS THE NEW NORMAL? These hearings can be ugly affairs. Whether it is Diane Feinstein reprimanding a nominee for being Catholic, 162 or Sheldon Whitehouse criticizing a nominee for being an elected judge who claimed support from pro-life groups when running for re-

161 Id. 162 Severino, supra note 56 (quoting Senator Diane Feinstein as saying “the dogma lives loudly within you, and that’s a concern” in reference to Judge Barrett’s Catholicism).

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election, 163 or Richard Blumenthal questioning nominee after nominee on Roe and asking them to pre-commit to a ruling on abortion issues. They are painful for the nominee and her family. And because the nastiness is covered in the popular press, that pain does not end when she walks out of the hearing room. Indeed, it may be months or years before a nominee has a floor vote. This has a cumulative corrosive effect, both on the judiciary and on public confidence in the judiciary. The judges leave the process knowing which side of the aisle they are on, whether they like it or not. A thorough lambasting by one party and praise from the other shows where their support lies. The confirmation vote further confirms this. Although as recently as the 1990s Circuit Court confirmations were often done by voice vote, in this administration every Circuit Court confirmation has been done by a roll-call vote and most of them have been party-line or near party-line votes. Although judges in general try to be neutral and independent, it is hard to believe that they are totally immune from the effects of this partisanship either consciously or subconsciously. Judge Carolyn Dineen King of the Fifth Circuit warned that this might occur as the result of partisanship in judicial appointments ten years ago.164 The process has only become uglier and more political since then. For the public, the contentious fights and party line votes look like ordinary politics. The judges look like political actors or political footballs. The thin line between a President choosing judges that view legal issues similarly to how he does and a President putting politicians on the bench is obliterated in the public consciousness. For example, one article when describing exchanges about Brown v.

163 Hrg. Before the S. Comm on the Judiciary (Nov. 15, 2017) https://www.judiciary.senate.gov/meetings/11/15/2017/nominations. 164 Carolyn Dineen King, Challenges to Judicial Independence and the Rule of Law: A Perspective from the Circuit Courts, Hallows Lecture, Marquette University Law School (Feb. 20, 2007).

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Board of Education stated: “the refusal to endorse Brown is a powerful symbol of the intensely xenophobic zealotry shared by many Trump judicial nominees that threatens civil rights jurisprudence in particular and the rule of law in general.”165 As I did above, I contest this description of these nominees and this interpretation of how these nominees handled questions about Brown v. Board of Education. Both Brown the question and articles like this are pretty clearly in bad faith. But this is by no means the only example of this kind of conduct.166 Bad faith characterizes this entire process and there is no reason to think the nominees of the next Democratic president will be treated any differently by their opposition. If the last twenty years of judicial politics has taught us anything, it is that what goes around comes around, whether that is abuse of the filibuster, blue slips, or the confirmation hearing. If we aspire to a neutral and independent judiciary that lives up to the aspirations of Chief Justice Roberts—no Obama judges or Trump judges, Bush judges or Clinton judges—this system cannot stand.167 Not just the nastiness and partisanship, but senators cannot ask judges to pre-commit to how they will rule in future cases. Judges cannot be seen as selling their rulings for a seat on the federal bench. And that is, to be clear, what happens when a senator inquires into a nominee’s views on abortion.

165 Johnson, supra note 160. 166 Compare Li Zhou, The Senate confirms Allison Rushing, a judicial nominee who once interned for a hate group, Vox (Mar. 5, 2019) https://www.vox.com/2019/3/5/18251573/allison-rushing-confirmation-senate-republicans- judges with Timothy Chandler, Activists Smear Allison Jones Rushing, National Review (Mar. 18, 2019) https://www.nationalreview.com/bench-memos/activists-smear-allison-jones- rushing-fourth-circuit-nominee/. 167 Pete Williams & Associated Press, In rare rebuke, Chief Justice Roberts slams Trump for comment about 'Obama judge', NBC News (Nov. 21, 2018) https://www.nbcnews.com/politics/supreme-court/rare-rebuke-chief-justice-roberts-slams- trump-comment-about-obama-n939016.

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As the graphs in Part I show, this has not been the state of affairs for very long. Hopefully, a new norm has not been firmly established. I am not optimistic. The last twenty years of the politics of judicial appointments demonstrate that new norms can set in very quickly and they endure. Unless Roe is overturned or the United States Constitution is amended to explicitly include a right to abortion, the opposition inputs are not going away. As long as judges decide how abortion can be regulated, there will be pressure on senators to vote for judges in accordance with their constituents’ views on abortion. Most commentators think this current Supreme Court is not willing to overturn Roe outright. 168 And a constitutional amendment enshrining the Roe right is unfathomable given that three-quarters of the states would need to ratify such an amendment and nearly half of the states would ban abortion outright if given the opportunity.169 But understanding that the Senate can shape the form opposition takes by how it shapes its procedures gives that body the power to mitigate these harms. The best thing to do would be for the Senate to eliminate confirmation hearings and ask senators to judge nominees based on the wealth of information provided to the Senate by the media, advocacy groups, and the nominees themselves. Perhaps key votes could be courted in courtesy calls, as they are in Supreme Court confirmations. But public shaming and interrogation of the nominee does nothing to better inform the Senate and does grievous harm to the nominee, the judiciary, and the public’s perception of the judiciary. Hearings are not constitutionally required. And they do not have a particularly deep history—the Senate Judiciary Committee

168 Adam Liptak, The Future of Roe v. Wade: 3 Scenarios, Explained, N.Y TIMES https://www.mcclatchydc.com/news/politics-government/article217063495.html. 169 Id. (suggesting that as many as 22 states would ban abortion if Roe were overturned).

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only started requiring nominees to appear at confirmation hearings in 1950.170 The hearings also have never before been practiced as they currently are. Even in the early 1990s, hearings were short and not particularly substantive. They have only become longer and more contentious as senators have been forced to use them to express opposition. They are not essential to this process. They can and should be eliminated. Eliminating the hearing would further reduce the means by which a senator can express her opposition. All that would remain would be the press, debate in the Senate, and her final vote. This is for the best. If a senator wants to express her opposition to a nominee or she wants to express her support for a given cause—e.g. abortion—she should do so either in the press or on the floor of the Senate. This forces her to articulate her views and speak to the public. In contrast, the hearing allows her to cast vague aspersions on the nominee and generally gesture at her position without clearly stating what her position is and why she holds that position. Forcing her to do these things, preferably on the Senate floor, makes her more accountable to the public. And insofar as the senators are using these hearings as campaign tools and ways to show their constituency that they are fighting for their voters, they can do so in a floor statement, videotape it, and put it online. They do not need a nominee present and they do not need to yell at a nominee personally. Although it was a shameful and mendacious act, the paradigm for this system of opposition is Senator Edward Kennedy’s “Robert Bork’s America” speech.171 Senator Kennedy articulated his position. Judge Bork and his allies in the Senate failed to adequately respond and Judge Bork was not confirmed. Although this account may be a

170 Miller, supra note 155 at 59. 171 See Robert Bork’s America, C-SPAN (July 1, 1987), https://www.c-span.org/video/?45973- 1/robert-borks-america (at 25:30).

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bit simplistic and ignores the events of Judge Bork’s hearing—where he failed to adequately duck, dodge, and dissemble, as a nominee should—it does demonstrate that this is a viable path for senators in opposition should they choose to accept it. And again, no nominee since Bork has repeated his mistake of arguing with the members of the Senate Judiciary Committee or let alone binding himself to a position in front of the committee. There is a significant difference between calling a nominee to sit before the Senate Judiciary Committee for the purpose of opposing her and just opposing her nomination in the press. For the nominee, although she can choose to not read what is said about her in the papers, she cannot choose to skip her confirmation hearing. There is also something more personal and destructive about a face-to-face confrontation versus one that happens through the media. A demand letter is not the same as someone grabbing you by the lapel. Moreover, given the way these hearings are conducted, nominees do not really have the ability to defend themselves against various charges. Although a nominee can answer the senators’ questions, if a senator wants to go on and on about an aspect of the nominee’s record that the senator thinks will embarrass the nominee, the nominee has to sit behind the desk until the senator is finished. And her defense will be limited by the fact that she is appearing as a nominee courting votes. A recent example of this was the Judge Rao’s nomination hearing. Although she responded to the senators’ questions about her college writings early in her hearing, the hearing continued for nearly three hours and those same writings were revisited again and again.172 Eliminating the hearings as standard practice need not mean that hearings should be eliminated altogether. Should something

172 Nominations, HEARINGS, Committee on the Judiciary (Feb. 5, 2019) https://www.judiciary.senate.gov/meetings/02/05/2019/nominations.

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particularly concerning come up in the nominee’s record, the Senate Judiciary Committee could call a special hearing. This was what happened the first time a nominee appeared before the committee in 1925. Harlan Fiske Stone spoke not because he wanted to court votes but because he wanted to assuage certain senators’ concerns about specific parts of his career.173 But this should be the exception, rather than the rule, and eliminating the default use of a confirmation hearing will hopefully prevent abuse. Many have already suggested eliminating confirmation hearings for Supreme Court nominations.174 Those opposed to this suggestion typically say something like what Chief Justice Roberts said to reporter Benjamin Wittes:

There’s no reason to suppose that [a judicial confirmation] couldn’t be a very uplifting, educational, informative discussion about—however you want to phrase it—the role of the courts [or] the appropriate judicial philosophy . . . People don’t have to view it as a grilling or a cross- examination, or an effort to come upon a gotcha moment . . . .175 Or something like what Justice Kagan proposed in her seminal Chicago Law Review article Confirmation Messes, Old and New:

The kind of inquiry that would contribute most to understanding and evaluating a nomination is . . . discussion first, of the nominee’s broad judicial philosophy and, second, of her views on particular constitutional issues. By “judicial philosophy” . . . I mean such things as the judge’s

173 Wittes, supra note 57 at 61-2. 174 See, e.g., Id. at 111-31. 175 Id. at 3.

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understanding of the role of courts in our society, of the nature of and values embodied in our Constitution, and of the proper tools and techniques of interpretation, both constitutional and statutory. A nominee’s views on these matters could prove quite revealing: contrast, for example, how Antonin Scalia and Thurgood Marshall would have answered these queries, had either decided (which neither did) to share his thoughts with the Senate. But responses to such questions can—and have—become platitudinous, especially given the interrogators’ scant familiarity with jurisprudential matters. And even when a nominee avoids this vice, her statements of judicial philosophy may be so abstract as to leave uncertain, especially to the public, much about their real-world consequences. Hence the second aspect of the inquiry: the insistence on seeing how theory works in practice by evoking a nominee’s comments on particular issues-involving privacy rights, free speech, race and gender discrimination, and so forth-that the Court regularly faces. It is, after all, how the Court functions with respect to such issues that makes it . . . either a “salutary” or a “destructive” institution.176 But the confirmation hearings of both jurists make it clear that no nominee will risk her confirmation by having these sorts of conversations. And frankly, the senators are not inclined to have this conversation. The hearing is about the opposition trying to torpedo the nominee. It is not about educating the public. Although the aspirations expressed by Chief Justice Roberts and Justice Kagan are admirable, these hearings do not and have never lived up to them. Far from it, the hearings debase the Senate and

176 Kagan, supra note 21 at 935-36.

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delegitimize the federal judiciary for no tangible gain. They should be eliminated as a standard practice for all judicial nominees.

CONCLUSION In the 115th Congress, Democrats on the Senate Judiciary Committee adopted a new practice of routinely asking Circuit Court nominees for their views on abortion. Although in previous sessions of Congress some nominees were asked about abortion—especially during the first two years of the George W. Bush administration—it had never been a common question. Nearly all the questions about abortion came from pro-choice, Democratic senators opposed to the nominee. No nominee has stated their opinion as to whether Roe was correctly decided or what their opinion on abortion is. Nevertheless, the question persists. It persists because of a legal regime that gives Circuit judges broad discretion in ruling on abortion cases. It persists because the judges who were nominated in the 115th Congress were nominated because of their credentials and ideological conservatism, not because of their connections to the Republican party and are, therefore, likely to believe that Roe was incorrectly decided. It persists because of the pressures put on the Democratic senators by activists, voters, and the Democratic Party’s platform. It persists because tripping up a nominee on the abortion issue may be a way to block a nominee and thus give the Democratic opposition an opportunity to frustrate one of the Trump administration’s major initiatives. And it persists because senators who oppose a nominee now have very few methods of doing so, all of which require opposing the nominee in public. The result of these questions, and questions like them, is not a better-informed senate. The result is not a high-minded public debate about the law or the people who make up the federal judiciary. The result is a brutal, politicized confirmation process that undermines the public’s confidence in the judiciary and may even

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threaten judicial independence. To avoid this result, the best thing to do would be to eliminate these hearings altogether.