Conspiracy of silence about Roe v. Wade at confirmation hearings

When Supreme Court nominee Sonia Sotomayor appears before the Senate Judiciary Committee this week, she is all but certain to be asked, and to answer, questions about many of the high-profile cases the Court has decided in recent decades. If past hearings are prologue, these will include questions about Brown v. Board of Education (school desegregation) and Griswold v. Connecticut (access to contraception and the right to privacy).

This makes sense. As many commentators have noted, questions about past cases can tell us much about a nominee’s understanding of current jurisprudence and her approach to legal interpretation. (It is not, however, necessarily an auger for future decisions. Most recent nominees, for example, have agreed that Brown was correctly decided, although they went on to curtail its impact in the 2007 case Parents Involved in Community. Schools v. Seattle School Dist. No. 1.)

But there is one case Judge Sotomayor will almost certainly decline to discuss: Roe v. Wade. It has become expected, and even acceptable, for a nominee to the Supreme Court to refuse to discuss the Court’s ruling on a woman’s constitutional right to abortion, and for Senators to decline to press the point. Worse, in order to not open the door to questioning on the Court’s abortion jurisprudence, Senators deliberately avoid asking nominees about the case in private meetings in advance of the hearing. They ask “around” it instead.

This conspiracy of silence sacrifices useful information about judicial philosophy to pure politics. When the drafters of the Constitution agreed that Supreme Court appointments required the “advice and consent” of the Senate, they surely did not anticipate that the process would curtail open discussion as it has since the failed nomination of Robert Bork in 1987. Bork’s skepticism at the idea of a constitutional right to privacy is widely viewed as leading the Senate to refuse to confirm him.

But the failure of the Bork nomination demonstrates why a full and frank exchange of viewpoints on pressing constitutional issues, including the existence and scope of a constitutional right to privacy, is essential. The Framers devised this process exactly so that Senators and the American public can learn about a nominee’s view on the Constitution and on the weight of precedent.

As Professor Charles Black put it, “To me, there is just no reason at all for a Senator’s not voting, in regard to confirmation of a Supreme Court nominee, on the basis of a full and unrestricted review, not embarrassed by any presumption, of the nominee’s fitness for office.”

Allowing a willful haze of ignorance to cloud judicial hearings sets a terrible precedent. The Senate, and Judge Sotomayor, should reclaim and reinvigorate the confirmation process with a willingness to discuss all of the Court’s jurisprudence, including constitutional protections for abortion rights.

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