In this piece, JWI Founder and Director, Prof. Hadley Arkes addresses the recent Supreme Court confirmation hearings of Amy Coney Barrett. He points out that there were not always hearing for Supreme Court nominees in the past and elaborates that the hearings became far more frequent and contentious once the Supreme Court placed abortion laws under the supervision of the federal courts. As parties have vied to control the courts through appointments, our politics have been shaped until we have these contentious hearings for Supreme Court nominees and the current “settled” format for these hearings: nominees keep their head down, take the pummeling, and don’t answer questions definitively. And, while this may be the “settled” format, Arkes believes that it is far from good. 

Some excerpts from this article:

But things moved to another, poisonous level with the pogrom that was carried out against Robert Bork in 1987. The source of the vexation is of course obvious. Things changed for the worse in 1973 when the Supreme Court discovered a right to abortion in the Constitution and in one stroke made abortion a national issue. For the Court had swept away all of those laws in the States that barred or deeply restricted abortion. Overnight, the laws of abortion in the States came under the supervision of federal judges; and what becomes the business of federal courts becomes now the business of the federal government.

If abortion, as a moral question, is contentious, that contention must feed a new turbulence into our national politics. But if abortion is the business of the federal courts, it must be the business of Congress no less than the courts. And yet, few lawyers seem to remember any longer the authority of Congress, to weigh in – to counter and narrow the holdings of the court – and so our politics has now been focused on the control of the courts.

But it was virtually predictable that not even Josh Hawley would make that move. For the line has been settled in now as the reigning orthodoxy amongst the “handlers” of the nominee that it is best not to set off tremors: there is no point in picking arguments with Democrats and delaying things by stirring more furies in the land. For the nominee: just keep your head down, take the pummeling, and we’ll get through this.

On the other side, the Democrat nominees will follow the same playbook. But when our friends say that both sides have “settled” on this format, we might well ask: How has this worked for everyone? Did it protect Clarence Thomas and Brett Kavanaugh from the libels that haunt them to this day and require protection for the Kavanaugh family?

Read the complete article here.