The confirmation process for Supreme Court nominees has become an exercise in political theater, Professor Lisa McElroy said during an interview on WHYY’s Radio Times on March 21.  

With Supreme Court nominee Neil Gorsuch understandably declining to reveal how he would rule – or would have ruled – on pending or past matters before the justices, members of the Senate Judiciary Committee can do little more than use the confirmation process to voice their own views on cases so that constituents will understand their votes on the nomination, McElroy said.

Instead of focusing on specific cases, McElroy said, she would have asked Gorsuch to explain how he thinks the intent of the constitution’s framers should guide the court’s decisions in the context of emerging law in arenas such as technology, terrorism and immigration.

“How do you really think that the framers contemplated some of the things we’re dealing with today,” McElroy said. “How can you be an originalist and still realize that there are things that could not have been within their contemplation?”

The “folksy” image that Gorsuch projected by testifying that a justice’s job is to wear a polyester robe and apply the law to facts is at odds with a more complex truth, McElroy said.

“We know it’s much more than that,”she said. “When you put nine people together, the dynamic of that is much more than just applying law to fact.”

Before the hearings began, McElroy told the Washington Times that Gorsuch could hardly handle the confirmation process any better than Chief Justice John Roberts, who famously said the court’s job was to “call balls and strikes.”