Holding Supreme Court justices accountable to what they said they'd do/wouldn't do during Senate confirmation hearings

Ever since Roe was overturned, there have been many complaints that Gorsuch/Barrett/Kavanaugh “lied” during Senate hearings by saying things like “Roe is settled law” and then voting to overturn it once they did get confirmed.

(Articles here, here, here, here, and here.)

Now, I don’t doubt for one moment that those 3 justices secretly intended to overturn Roe all along, but IMHO it would be a problematic idea to say that justices must always be held to what they say during confirmation and never allowed to deviate from it, because such a stance would also mean there is no room for justices to legitimately change their minds. Imagine if, for instance, a justice had been asked by the Senate during confirmation hearings in 1980, “Do you approve of homosexual marriage?” and he said no, but then by 2015 had changed his viewpoint on LGBT. Would such a justice be guilty of “lying,” then, if he voted in favor of Obergefell in 2015?

Hold them responsible? In a position with life terms, not really a possibility. What I would be interested in seeing is a legal requirement preventing future nominations to have ABA review limited, something Trump and Bush both managed

I would also like the ABA to reduce the rating of anyone who similarly ruled against what they considered “settled law,” although that’s largely cosmetic - I would still feel better about it.

Lastly, since those being mentioned are largely likely to fall back on the ‘strictly constitutionalist’ readings to make their reactive judgements, they can take solace that the constitution doesn’t mandate federal funds for additional defense and law enforcement of their private property. So sad. So -zero- additional efforts beyond the usual and customary for their residences.

The process to hold appointed officials accountable is impeachment. It’s not great, because it’s necessarily political and requires a very high bar, but I’m not at all convinced that a lower bar or something like letting the DOJ prosecute them for “lying to Congress” would be systemically better outcome. We already appear to be approaching the point where we should expect the President to go through an impeachment trial every time the legislature is controlled by the other party. Giving the executive branch carte blanche to fuck with the judiciary seems like a bad road to go down.

In this specific case, it doesn’t look to me like they lied. They used pretty weaselly language, but that’s par for the course for politicians trying not to say unpopular things out loud. No thinking person was fooled by it. From the second cite:

Like, those aren’t lies. Roe was in fact a precedent that had been reaffirmed. If you ask someone “Would you do X” and their answer isn’t “Yes” or “No”, but “Well, historically, X hasn’t been done, and there’s a lot of institutional inertia against X.” you have your answer unless you’re a moron.

Good example! And of course even if the justice had not changed his viewpoint, it is possible to not approve of homosexual marriage and also rule with the majority on Obergefell. Because the question about approval is about personal values, and the question in the case is (or at least could/should be) about the law.

There are plenty of Supreme Court decisions that I think were correctly decided legally that likely have policy outcomes I’m not in favor of.

Literally no other nation appoints members to its version of a Supreme Court for a lifetime term. It’s not necessarily holding justices “accountable,” but a fixed term would at least limit the opportunity for perpetual malfeasance.

At the same time, a lifetime term in theory protects them from possible corruption, such as a deal for a cushy job in return for a certain ruling. Is there a middle ground? Or perhaps just beefed up ethics monitoring?

Lifetime tenure is generally a bad idea out of the 18th century when people were typically appointed to judicial offices in their 40s to 50s and when living past 70 in good health just wasn’t that common.

That being said, trying to somehow influence the judiciary and force them to obey “promises” they make prior to confirmation would be a much worse thing. Judges should be able to rule on the particulars of a case and the law as they view it in the context of that time and case, if that means they have reasoned themselves into a different conclusion than what they might have suggested 20 years ago, so be it. [Of course, in the case of the Alito-Thomas Junta, none made any explicit promises at all.]

Restructuring the Supreme Court away from its current outdated and poorly considered form is a good idea, and part of that would be ending lifetime tenure. But the idea of going after judges for not ruling the way you want is a really bad approach.

The beauty of it is that the same body that confirmed the Justices has the power to remove them from office for bad behavior.

~Max

Supreme Court Justice Samuel Chase was impeached in 1804.

So Congress can ask future nominees whether they would hold to this precedent.

spoiler. He was impeached for political reasons and acquitted for political reasons. Perhaps not the precedent you were looking for.

Except that getting 67 to remove from office is far harder than getting 50 to confirm.

Well, until relatively recently it took 60 to confirm. But yeah, removing a Supreme Court Justice is a big deal.

~Max

And should be.

The real problem is a system that permits partisan hack bozos to make it to the hot seat in the confirmation hearings and then for partisan hack Senators to confirm them despite their evident unsuitability to the high office.

It’s also a side effect of how tough it is to pass legislation. People figured out a long time ago that on certain issues you get more bang for your buck appointing judges that agree with your preferred policies than by using normal legislation.

Of course this always at least a specter regardless of political system but the balance is tilted in the American system.

I don’t think a lifetime term is particularly effective at insulating judges from corruption. Fifteen federal judges have been impeached by the House of Representatives and eight of them convicted and removed from office by the Senate. And that doesn’t capture judges who resigned ahead of a likely impeachment.

I guess if judges served for limited terms there’s the additional issue that someone could promise them a job (or just a wink wink nudge nudge) after their term expires.

Only if the Reps first impeach. If they don’t, the Senate is powerless.

That is an average of 0.06 federal judges impeached per year since the ratification of the Constitution, and 0.03 removed per year since ratification.

I see nothing wrong with impeaching and removing from office justices who insert their own pre-determined opinions into rulings instead of following their duty to objectively consider the constitutional arguments. Congress is the check and balance on the Supreme Court and there’s been no good reason for them not to exercise that authority in the past and create legislation to better define the court’s role so it is not simply another political scrum.

“60 to confirm” was itself a relatively recent innovation. Clarence Thomas was confirmed with 52 votes and Samuel Alito got 58. (In the latter case, there was an attempted filibuster, but cloture had not yet become a proxy for the final vote, and several senators voted for cloture but against confirmation.)