Sunday, April 17, 2022
Oral advocates often must resist the first answer that comes to mind from judges who are ill-prepared or concerned about an issue not presented by the case. The judges asking the questions will make the decision so counsel must fashion a respectful response, even if the question does not merit it and the quick-witted answer that seems so tempting.
The same dynamic was on display during the recent hearings on Judge Ketanji Brown Jackson’s nomination to the Supreme Court. Senators, all of whom voted against consenting to her nomination, asked some strange questions. Despite claims that judges should apply rather than make law and thus keep their personal views in check, many senators sought Judge Jackson’s policy positions on a range of hot button political issues. Her unflappable demeanor and deft handling of the questions posed to her was a model for the type of temperament we expect from judges – and from counsel arguing before a court.
Still, as I listened to the hearings, my responses were unrestrained, knowing that I had not been nominated to the highest court in the land, no one would hear my answers, and I was not making history. In this post, I indulge some of those imaginary answers that popped into my head, tongue firmly placed in cheek, by substituting RSP (me) for KBJ.
Senator Ted Cruz: “I’m a Hispanic man; could I decide I was an Asian man?”
RSP: “Senator, as far as I’m concerned, you can decide you are a fruitcake, and I’d have no reason to doubt you. Still, you would remain equally unwelcome in my household.”
Senator Tom Cotton: “Do you think we should catch and imprison more murderers or fewer murderers?”
RSP: “Really, that’s your question? Do you even know what a Supreme Court justice does? A justice does not catch or imprison murderers or make the laws that govern that process. And, by “we,” are you suggesting that members of the Senate Judiciary Committee do that task? Do you want to try asking a question again?”
Senator Lindsey Graham: “Did you watch the Kavanaugh hearings? … He was ambushed. How would you feel if we did that to you?”
RSP: “Senator, I was busy working for the American people as a judge while those hearings took place, so I did not watch the hearings. How I would feel, though, is an irrelevant question. Judges do not interpret or apply to the law based on how they feel – and your questions will not figure in any case I might hear as a supreme court justice. Senator, given the kinds of questions I have received from your side of the aisle, most of which have little to do with judging or my qualifications to serve on the Supreme Court, like this one, how I feel isn’t relevant.”
“One more thing, Senator. An ambush is the act of approaching or confronting someone with something unexpected. Are you suggesting, based on the questions I’ve been asked at this hearing, that I should have expected such bizarre questions?”
Senator Marsha Blackburn: “Can you provide a definition for the word ‘woman’?”
RSP: “You want a definition of a woman. Here’s one. A ‘woman’ is a person that the Supreme Court as recently as 1961 held Florida could exclude from the jury service list unless she affirmatively volunteered for it, even though no such requirement was imposed on men. The Court reasoned that, ‘Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.’[*] That’s a decision where the majority’s personal views obliterated the constitutional requirement of equal protection – and thankfully no longer holds sway.”
Senator Lindsey Graham: “On a scale of 1 to 10, how faithful would you say you are, in terms of religion?”
RSP: “In introducing your question, you just said that you understood my faith is important to me and that you don’t measure up on being faithful because you only go to church three times a year. Now you want me to rate my religious faithfulness on a scale of 1 to 10? Let’s just leave it at more faithful than you revealed yourself to be, even though the question has nothing to do with my qualifications or ability to serve on the Supreme Court. Next question.”
Senator Ted Cruz: “Do you agree with this book that is being taught with kids that babies are racist?”
RSP: “I have not read this book. My only knowledge of it comes from your description of it and the passage you read before you posed this question. If I were to believe your earlier characterization, it does not say that babies are racist but states that babies are born without prejudice or bias. Your question presupposes the opposite. So, before I can answer your question, answer this one: were you lying about the book then or are you lying about it now?”
[*] Hoyt v. Florida, 368 U.S. 57, 61-62 (1961).