By Jay Wexler

Neil Gorsuch, nominee for Associate Justice to the U.S. Supreme Court, and President Donald Trump

By all accounts, it would seem that when hearings begin this month on Neil Gorsuch’s appointment to the Supreme Court, the American people will once again be subjected to a charade. Democratic Senators will ask probing questions of the nominee, seeking to understand his approach to constitutional interpretation, and Judge Gorsuch will decline to answer them, claiming that he cannot signal how he will vote in cases that might come before the Court. A couple of days will go by, and at the end, nobody will know anything more about the nominee than what they can already learn from his Wikipedia page.

This will not be solely Judge Gorsuch’s fault. Nominees of both Republican and Democratic presidents have consistently engaged in this form of theater for decades now. Hiding behind dubious claims of judicial impartiality, they have even refused to explain how they would have ruled in cases that have already been decided by the Court; after all, who knows when the same issue might return to the Marble Palace in a somewhat different guise, or even the same guise. In a way, it is hard to blame these nominees for their caginess. The last person to come clean on how he would interpret key provisions of the Constitution was Robert Bork, and we all know what happened to him.

Still, these silly shenanigans serve nobody. Wouldn’t we all benefit from a real hearing, one in which Judge Gorsuch explains his approach to constitutional questions so both the Senators who must decide on his appointment and the American people who will have to live with it (or not) actually learn something about him? Is there a way to break through this stalemate? Perhaps not. But here is one idea.

Although the Constitution contains hundreds of clauses and provisions, most of the cases that come before the Court involve only a handful of them—the First Amendment (religion and speech), the Fourth Amendment (searches and seizures), the Eighth Amendment (cruel and unusual punishment), the Fourteenth Amendment (due process and equal protection), and a few others. These are the clauses that get the most attention from the media and are most well-known among the public. If the Constitution were a zoo, in other words, these would be its lions, pandas, and giraffes. But what if the Senate instead asked Judge Gorsuch about some of the lesser known creatures in the constitutional zoo—its shrews, wombats, and bat-eared foxes?

Many of these odd clauses pose the same type of interpretive questions that the more well-known ones do, but for a variety of reasons, including procedural rules that bar courts from hearing challenges under them, they are almost never subjected to judicial interpretation. Since Judge Gorsuch will never have to decide a case about these clauses, he will have no plausible rationale to evade questions about them. As a result, the public will have the opportunity to learn about how the nominee approaches constitutional interpretation, and our Senators will get at least some good information on which to base their up or down votes. With a President who is openly hostile to the judicial branch of government, such information is more important than ever.

For example, what if the Senate asked Judge Gorsuch about the Ineligibility Clause? The who’s in the what now, you ask? This provision of Article I, section 6 of the Constitution prohibits members of Congress from being appointed to an executive office if that office has been created or its salary been increased during the member’s term in Congress. The clause serves an obvious anti-corruption purpose, preventing members of Congress from voting to create or make more attractive an office that they hope to occupy. But what would happen if a Senator voted to increase the salary of an office and was then appointed to that office but before she actually took the office, the Congress reduced the office’s salary back to its original level? Could the Senator take the office or not?

Although no court has ever considered whether this fix would solve the constitutional problem, executive branch lawyers have considered the issue several times. The Reagan Justice Department decided that the fix would not solve the problem, while the Obama Justice Department, in an opinion concerning Hillary Clinton’s appointment to be Secretary of State, came out the other way. The issue raises fundamental questions about how the Constitution should be interpreted, including whether we should look only to the text of the document and its original meaning or whether interpretation should be more flexible and pragmatic. 

The chances that Judge Gorsuch would ever be called on to decide this question as a sitting Justice is somewhere in the neighborhood of a gazillion-bazillion to one. If a Senator asked the judge to explain in some detail how he would approach this particular question, the nominee would presumably have to answer (if he didn’t, then the Senate could certainly hold him accountable for the failure), and the entire body would learn important information about the judge’s view of the Constitution and how it ought to be interpreted. This exercise could be repeated with other odd clauses, from the Letters of Marque and Reprisal Clause to the Third Amendment to the Natural Born Citizen Clause. The hearing that would result might not be the most typical trip to the zoo we’ve ever seen, but it would sure be a lot better than the circus to which we’ve become accustomed.

About the Author 

Jay Wexler is a professor at the Boston University School of Law, where he has taught environmental law and church-state law since 2001. He is the author of three previous books, including Holy Hullabaloos, The Odd Clauses,and When God Isn’t Green. Follow him on Twitter at @SCOTUSHUMOR and visit his website.