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Litigation Journal

Fall 2023: Game On

Poker and Judicial Selection

Kenneth R Berman


  • The judicial system depends on candor and honesty.
  • The principle on which the facially neutral approach rests is less than intellectually honest.
  • It should be fair game to ask aspiring jurists how they would have ruled in past cases.
Poker and Judicial Selection
Jamie Grill via Getty Images

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In what realm does success require bluffing? If you guessed poker, you would be right. Sadly, if you guessed judicial selection, you might also be right. The difference? In poker, we expect it.

Some think bluffing is an art form—a subtle way, without lying, of suggesting the ability and willingness to act a certain way, inducing others to do something that advantages the bluffer. In poker, it’s generally accomplished by confidently placing a large bet, implying that the bettor must have the better hand, prompting the opponent to fold.

In judicial selection, we see something like it when someone asks about the nominee’s judicial philosophy on controversial issues. The nominee answers by proclaiming laudable principles—a strong belief in due process and the rule of law; a solemn respect for precedent (while not pledging to adhere to it); and the importance of open-mindedness about issues likely to come before the nominee. The answer is designed to create the impression—skeptics might say an illusion—that the nominee is impartial and thus can be counted on to approach the issue without any pre-formed bias. Nominees avoid tipping their hands, knowing that a more responsive answer could easily doom the nomination if the political decision maker prefers someone with a different judicial philosophy.

That scenario often plays out in Senate confirmation hearings. By painting themselves as neutral and avoiding the appearance of having prejudged anything, nominees hope to give comfort to fence-sitters and to avoid a vote against confirmation. After all, how could a senator justify voting against a nominee whose answers bespeak no controversy and instead are laced with what a hypothetical model jurist would say?

Much can be said for not prejudging issues. Prejudging suggests that a litigant won’t get a fair shot. What litigant will feel that justice has been done if the judicial decider has a pre-formed view?

When judges are popularly elected, the dynamics can be different. Candidates often find it helpful to telegraph how they might rule on controversial issues. A recent candidate for a supreme court seat in a state that twice voted for Donald Trump used the campaign slogan “Conservative. Trump Tough.” He won.

More recently, a candidate for a seat on Wisconsin’s supreme court made no secret about how she would rule in an abortion case. Her campaign ad said: “I believe in a woman’s freedom to make her own decision on abortion. It’s time for a change.” She won too.

Open Opinion or Professed Neutrality?

And that tees up important questions: Does the justice system work better if, during the selection process, judicial nominees reveal their views, at the price of impairing the public’s confidence that the nominee will keep an open mind until after a case’s oral argument? Or does it work better if, during selection, judicial nominees profess to be neutral on critical issues, depriving stakeholders of knowing how the nominee really feels and of considering the consequences of seating the nominee?

To answer those questions, it helps to consider which approach rests on a more defensible principle. For simplicity, let’s refer to them as the facially neutral approach and the views-disclosed approach.

The principle on which the facially neutral approach rests is that if a future jurist reveals a position on an issue likely to come before the court, then people will conclude that the jurist is biased against parties on the other side of that issue. And if that is so, then people will distrust the courts given that trust, and the very legitimacy of courts themselves, is based on the belief that every party will get a fair chance to persuade a neutral decision maker to rule in the party’s favor. Prejudging an issue is seen as the antithesis of true justice. That’s why, in trials, potential jurors with identified biases about the matter won’t be seated.

But that principle is an unrealistic ideal, at least when applied to potential jurists. Judges and justices are human, not superhuman. They have opinions on controversial issues. Whether they mold their judicial philosophies around those opinions or come to those opinions by applying their judicial philosophies, their opinions sit with them on the bench and in their chambers. Might they be persuaded by the briefs and oral arguments to vote against where their biases might lead them?

Judicial nominees may well believe they can set aside their personal philosophies and be neutral when deciding legal questions. They may well think they can keep an open mind until they’ve read the briefs, heard the arguments, and done the research. But at day’s end, it should surprise no one when a judge decides a case in a way that aligns with the judge’s ideology or political philosophy. It happens all the time. Was anyone surprised by Dobbs after Donald Trump pledged in his campaign to put pro-life justices on the Court?

What about the views-disclosed approach? That approach is based on the principle that those who decide who gets to be a judge—whether the deciders are voters or senators—should know the nominee’s judicial philosophies and how the nominee would likely apply them on issues that matter. Without that knowledge, the deciders cannot assess the consequences of what they are asked to decide, leading them to make decisions they may come to regret.

Consider Senator Susan Collins. When she announced her intent to support Brett Kavanaugh’s elevation to the Supreme Court, she said, “I could not vote for a judge who had demonstrated hostility to Roe v. Wade because it would indicate a lack of respect for precedent.”

“Protecting this right is important to me,” Collins said. “His views on honoring precedent would preclude attempts to do by stealth that which one has committed not to do overtly.”

What did Kavanaugh say to Collins in their private pre-confirmation conversations that assured her that Roe was safe with him, leading her to vote in his favor? After Dobbs, we found out. According to news reports about contemporaneous notes kept by Collins’s staff, Kavanaugh told her: “Start with my record, my respect for precedent, my belief that it is rooted in the Constitution, and my commitment and its importance to the rule of law.” And this: “Roe is 45 years old, it has been reaffirmed many times, lots of people care about it a great deal, and I’ve tried to demonstrate I understand real-world consequences. I am a don’t-rock-the-boat kind of judge. I believe in stability and in the Team of Nine.”

After Dobbs, Collins said she was “misled” into thinking that Kavanaugh’s respect for precedent meant he would not vote to reverse Roe. In hindsight, Collins and those who supported abortion rights might well have preferred the views-disclosed approach.

But the views-disclosed approach conflicts with what Justice Ruth Bader Ginsburg preached: “A judge sworn to decide impartially can offer no forecasts, no hints for that would show not only disregard for the specifics of the particular case. It would display disdain for the entire judicial process.”

Ginsburg, though, did not herself adhere to that policy. In her Senate confirmation hearing, she said this about abortion: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. . . . When government controls that decision for her, she is being treated as less than a fully adult human responsible for her own choices.” Ginsburg didn’t stop there. She also said, “It is essential to woman’s equality with man that she be the decisionmaker, that her choice be controlling. If you impose restraints that impede her choice, you are disadvantaging her because of her sex.”

That was a pretty explicit disclosure of her thoughts on the issue. Nothing facially neutral there. She was confirmed 96–3.

Facial Neutrality Is Not Honest

Which brings us to why the principle on which the facially neutral approach rests is less than intellectually honest and thus not really defensible. If we divorce the selection or confirmation process from what jurists actually do, we readily see that every judicial ruling publicly reveals the judicial philosophy of the jurist who issued or joined in it, at least on that issue and on those facts. That revelation is a huge data point, telegraphing how that jurist will likely rule on that same issue if it comes up again or on similar issues when they arise.

We expect sitting jurists to explain in their published decisions why they ruled the way they ruled. Doing so doesn’t betray the judicial system. It strengthens it. It should be fair game, then, to ask aspiring jurists how they would have ruled in past cases had they been on the court at the time. And we should expect them to answer those questions. That would be treating them no differently from sitting jurists, whose ranks they seek to join. And it would tell us much more about the consequences of electing or confirming them than if they were to voice a bland homage to the value of precedent, which, after all, does nothing other than to sidestep the issue and mask what might be a seriously problematic judicial philosophy.

To understand why we should not accept the facially neutral approach, we should understand what gave birth to it. Scholars and journalists attribute it to how Robert Bork, after being nominated in 1987 to fill Lewis Powell’s seat on the Court, handled himself in his Senate confirmation hearings. In those hearings, he said that the Constitution did not guarantee a right to privacy, taking a swipe at Griswold v. Connecticut, which struck down a law barring married couples from using contraceptives. He said that Roe v. Wade “contains almost no legal reasoning.” He was critical of affirmative action and of the Supreme Court’s ruling striking down gerrymandered legislative districts that did not follow the one-person, one-vote principle.

Bork lost in the Senate by a 58–42 vote. After that, most federal judicial nominees adopted the facially neutral approach, saying as little as possible about their judicial philosophies, knowing that to do otherwise could put their confirmations at risk.

But isn’t that the point? One can disagree with Bork’s judicial philosophy, but no one can fault Bork for his honesty. He must be respected for that. His honesty doomed his confirmation. Yet, it helps to remember that while the nominee’s chance at a coveted judicial appointment is at risk, confirmation hearings are not about what’s best for the nominee. They’re about what’s best for the Constitution, for the rule of law, for our democracy, and for our country.

An Honest Answer

So how should a judicial nominee respond when asked about a controversial topic? It’s hard to argue that honesty is not democracy’s best policy. The honest answer might go something like this:

I’ve read Smith v. Jones, and I’ve considered the arguments on both sides of the issue. Although I haven’t read the briefs, based on what I know about the case from the opinion and my general knowledge of the law in that area, I think Smith had the better argument. If I were sitting on the Court at the time, I likely would have ruled for Smith, just as the majority did. It feels to me like the majority got it right. But that’s not to say that, if the issue came up again today, I would reflexively rule in the same way the Smith majority did. If there were cogent reasons for ruling the other way, say based on changed circumstances or something the Smith court overlooked, I would need to decide whether those reasons should dictate a different outcome.

An answer like that, if truthful, would strike the right balance between the views-disclosed approach and the facially neutral approach. It would give the voters or senators as much information as possible about the consequences of seating the candidate. That’s a good thing, because most rational people can’t make intelligent decisions without understanding the consequences.

In business transactions, we have little tolerance for actors who hide relevant information. We have even less tolerance for those who cover up pertinent information with statements designed to mislead the counterparty into thinking that the state of affairs is different from what it really is.

So it should be in judicial selection. The judicial system depends on candor and honesty. What’s the difference between sitting jurists who have already decided an issue and aspiring jurists who have yet to decide that issue? Answer: The sitting jurists have shown their cards. In all honesty, aspiring jurists should do so as well.