Sunday, January 12, 2003
Justice Scalia just made it impossible for any judicial nominee to say, with a straight face, "Senator, I can't ethically answer that question, because it would be inappropriate of me to comment on how I would rule on a specific issue that might come before me." Justice Scalia did this, by publicly criticizing the Ninth Circuit's "Pledge of Allegiance" decision -- even though it is quite obvious that the case is likely to come before the Supreme Court. Now, I've never thought that the "I can't ethically answer that question" was a good answer. And I don't think that Justice Scalia did something unethical by giving his speech. But I hope that, when the next judicial nominee tries this weaseling, all Democratic Senators will say in unison, "if it's ok for Justice Scalia to do it, it's ok for you too -- now answer the question, please." (link, of course, via Howard Bashman).
UPDATE: A reader pointed out to me by email that Justice Scalia had already doomed the "I can't properly tell you how I'd rule on that issue, Senator" evasion, in his opinion for the Court in Republican Party v. White last term. That opinion contains Justice Scalia's explanation as to why it's not a bad thing, and not ethically improper, for candidates for judicial office to declare how they would come down on certain legal issues. I seriously hope that Democratic Senators on the Judiciary Committee don't shy away from this type of question out of some misguided squeamishness; I don't think that Republican Senators will refrain from it, when the shoes are on the other feet, now that Justice Scalia and a Supreme Court majority have endorsed the practice. (Technically, of course, White was about the selection of state court judges, by election, not about the confirmation of federal judges; but the principle is equally applicable to federal judicial confirmations). See also todays' NYT article on Justice Scalia's speech.
posted by sam 6:41 PM
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