At 9 pm Monday, Donald Trump will reveal which lower court judge he selected to overrule Roe v. Wade. The lucky nominee will then spend the next few months touting familiar platitudes about their respect for precedent.
It probably isn’t possible to coax the nominee into saying something damning on the record — if you want to learn what kind of justice they will be, look at their judicial opinions and their past writing, not to their conduct as a nominee — but it is possible to avoid becoming an unwitting agent for a White House that wants to carefully manage what people learn about Trump’s nominee.
Here are a three tips, based on my own experience covering a decade’s worth of Supreme Court confirmation fights, on how to talk about this latest nomination without being fooled.
1. Confirmation hearings are useless
Judicial confirmation hearings are a nominee’s opportunity to suck all of the information out of a room, revealing as little about their record as possible, while also trying to seem super smart.
Different nominees sometimes take different approaches to this task. Chief Justice John Roberts tended to answer questions by summarizing existing case law without revealing his own views. Neil Gorsuch outright refused to answer many questions intended to probe his beliefs. Some of Trump’s lower court nominees even refuse to answer uncontroversial questions like “Was Brown v. Board of Education correctly decided?”
The general rule that statements made at confirmation hearings should be taken with a grain of salt applies doubly to any statements about Roe v. Wade. During his confirmation to a lower court, Chief Justice Roberts claimed that “Roe v. Wade is the settled law of the land.” Justice Clarence Thomas improbably claimed at his Supreme Court confirmation hearing that he had never “debated the contents” of the Roe opinion. Both men are reliable votes against abortion rights.
It is possible, in other words, that Trump’s nominee made a statement during their last confirmation hearing which gives the impression that they won’t overrule Roe. Such statements have no informational value whatsoever.
2. Don’t quote lawyers who practice before the Court unless they are speaking anonymously
This rule is counter-intuitive for most journalists. As a general rule, on-the-record statements are considered more reliable than anonymous statements because the speaker puts their reputation on the line when their name is attached to their comment.
A different rule applies, however, when a lawyer is asked to give their candid opinion of a judge they may have to appear in front of some day. Lawyers have an ethical duty to advance the interests of their clients — and that duty includes not needlessly pissing off judges that may hold a client’s fate in his or her hands. For this reason, litigators are unreliable sources for journalists, at least when the subject of a judge’s fitness for a promotion comes up, because a litigator will feel obligated to praise the judge in order to win that judge’s favor.
If you must speak to a lawyer who practices before the Court, tell them in advance that anything they say will not have their name beside it.
On a related note, it is likely that shortly after Trump unveils his nominee, some prominent Democrat who practices before the Supreme Court will endorse the nominee’s confirmation. When that happens, remind yourself that this Democrat has both a professional and a financial stake in being well-liked by the justices, and discount their statement accordingly.
3. Pay attention to where the nominee disagrees with other judges
Lower court judges are, at least in theory, bound by precedent. A good judge will sometimes hand down decisions tracking Supreme Court decisions that, if they sat on the Supreme Court themselves, they would vote to overrule.
This reality creates a dual dilemma for anyone trying to assess a nominee’s record. On the one hand, the nominee’s opponents may unfairly tar him or her for following a decision lower court judges are required to follow. On the other hand, a nominee may attempt to weasel out of fair allegations by falsely claiming that they were bound by precedent.
A helpful way to thread this needle is to look for cases where the nominee disagreed with other judges on the same legal question. These disagreements often reveal where there is play in the law, permitting judges to choose between different possible outcomes. This method isn’t perfect — sometimes, for example, three judges with similar views are assigned a case that presents an issue that few other judges have considered — but it is a useful way to see how the nominee acts when they have discretion.
If you are comparing a nominee’s actions to those of other judges, it is also useful to know those other judges’ reputations. If Judge X takes a position to the left of Judge Y, for example, that does not necessarily mean that Judge X holds a liberal view. It may mean that Judge Y is a bit of a renegade who frequently takes positions that are hard to square with existing law.