For decades Supreme Court nominees and their political supporters have often spoken in a code of obfuscation, particularly in Senate confirmation hearings. The point is to avoid as much as possible any indication about the nominee’s personal beliefs regarding sensitive issues likely to come before the high court, such as abortion or gun rights.
This reticence largely began following the bitter 1987 Senate hearings and subsequent defeat of President Ronald Reagan’s Supreme Court pick, Judge Robert Bork.
Judge Bork had a lengthy trail of public statements, and in hearings he discussed in detail his controversial opinions, including his belief that the legal underpinnings of Roe V. Wade abortion decision were shaky. Afterwards he blamed his defeat in part on tough speeches and advertising by opponents, which drew on – the GOP would say misused – his own words.
Thus the cloud of code, in which “legislating from the bench” means a judge pushing liberal positions, sidestepping a question about Roe v. Wade by referring to it as “settled law” can be an attempt to avoid discussing abortion entirely, and specific pending cases are dismissed without comment because “they might come before me” if confirmed.
But is this way of delicate discourse outmoded in the age of Trump, where the president himself often says the quiet part out loud, discussing motives others might keep hidden?
There’s some evidence that’s the case. Senate Republicans have already laid out the lines of the upcoming nomination fight in an unusually blunt manner.
Take abortion. Sen. Josh Hawley earlier this week tweeted that he would only support a nominee who says openly that Roe was “wrongly decided.” He called on other Republicans to take the same stand.
Sen. Thom Tillis of North Carolina, in a toss-up reelection fight, overtly divided the Supreme Court into teams, saying in a statement that he supports the “conservative jurist President Trump will nominate” as opposed to Joe Biden’s undoubted “liberal activist” choice.
Chief Justice John Roberts, who has long insisted the high court is separate from partisan politics, may not like this trend. Will voters? It’s possible they’ll find it a more realistic statement of the obvious divisions.
It “feels like Trump-era rhetoric has ditched the old codes . . . for something that accurately describes the stakes . . .” tweeted Washington Post campaign reporter Dave Weigel over the weekend.
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