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03/28/2017

Reflections on the Gorsuch Hearings, Part II: High-Stakes Answers
Chris Green

Yesterday I noted one of my reactions to the Gorsuch hearings: that Judge Gorsuch is a man who takes promise-keeping and the rule of law very seriously indeed, and that this shows an important error in our forecast in Originalists Against Trump. My second thought about the Gorsuch hearings is (much) more technical: that stakes-sensitive epistemology offers a possible explanation for Gorsuch’s reticence to commend or criticize cases whose correctness or scope he will rule on as a judge.

When should people speak, and when should they keep silent? Many recent epistemologists have argued that we should do so only when we know whereof we speak. Knowledge is the norm of assertion. Many of the same epistemologists (and some others too) argue that what counts as “knowledge”—and so, given knowledge as the norm of assertion, when we should speak—depends on how much is at stake when we speak. Bigger stakes require more evidence. Saying “the bank is open on Saturday” will need more evidence, and more confidence, if we need to get money to pay a mortgage than if we only need money for Saturday-night poker.

Ryan Doerfler has recently applied stakes-sensitive epistemology to interpretation in an essay forthcoming the Michigan Law Review, High Stakes Interpretation. He argues that the tendency to see statutes as ambiguous when the stakes increase may reflect higher standards for knowledge in the high-stakes setting, rather than motivated cognition or disingenuity.

For my part, I argue here that different settings for constitutional interpretation might involve different stakes. Different interpreters will therefore require different amounts of evidence before making claims about what the Constitution requires or allows. Because legislative decisions are more easily reversed, constitutional interpretations on which they are based need less evidence than does the constitutional interpretations that support judicial review. Congress may properly say that X is constitutional based on less evidence than courts need in order to say that X is unconstitutional.

What does stakes-sensitive epistemology have to do with the hearings? Judge Gorsuch has worn many hats in his career: that of an executive-branch advisor, that of a judge, and that of a Supreme Court nominee. These are three very different contexts, and in all of them, his chief job has been speaking, largely speaking about the law, either to other executive-branch officials, or to litigants, or to Senators asking how he would approach work as a justice. And these contexts involve very different stakes. If his executive-branch interpretations were the final word on interrogation policy, say, then his statements might have been very high-stakes indeed. “I don’t know” would be appropriate a great deal of the time if there were no opportunity to research high-stakes questions in more depth. But in a normal conversation among executive officials, where a statement about the law will be checked by many others before any policy is executed, a slight inclination might be enough to warrant including that statement in a draft. Judicial opinions are a different setting involving different stakes. Courts have traditionally refrained from making statements about a conflict between the Constitution and a statute unless that conflict is “clear,” after the court has done whatever it can to clarify the issue; more than proof by a bare preponderance of the evidence is required.

What about nomination hearings? Here, one important factor affecting the stakes is the great number of people who are watching, or will watch, the hearings: many more than will read most of Judge Gorsuch’s judicial opinions for the Tenth Circuit. The great many litigants who will argue before a Justice Gorsuch if he is confirmed will take his confirmation-hearing statements as indications of the sorts of arguments that he will entertain. Likewise, Justice Kagan’s statement at her confirmation hearing that “We are all originalists now”—and her stress on the differing levels of abstraction that different constitutional or statutory texts might involve—tells us what sorts of arguments she will use to resolve cases as a justice. Kagan’s statement is thus an important barometer of public legal and constitutional culture because nominees do not make such statements lightly. Confirmation hearings are a very high-stakes context.

How does this help explain why a nominee might not answer a Senator’s question, or might refuse to say how a future case might be decided? Such reticence need not reflect a complete absence of information in the nominee about the issues that future cases will involve—a sort of ignorance inappropriate in a future justice. Nor (as in Doerfler’s application of stakes-sensitive epistemology) need it reflect disingenuous, feigned ignorance. Deciding actual cases requires a lot of evidence, and statements about future cases in a high-stakes context like a confirmation hearing require even more. The judicial duty of clarification (see here and here) requires that courts consider “every consideration that can occur to us,” as Justice Iredell put it in 1792. Hazarding a guess in a confirmation hearing about the outcome of that effort at clarification before it has taken place is inappropriate for the simple reason that the stakes are too high.