(The Return of) Ignatz, by Sam Heldman

Monday, July 04, 2005

a refresher course on some judicial confirmation bs
We've all been over these things before, but as a quick refresher:

Republicans will say, in regard to the confirmation hearings for a Supreme Court nominee, that it is improper for Senators to ask, and for the nominee to answer, questions about the nominee's legal views on specific topics.

In part, the assertion always is that a nominee cannot ethically answer such questions because, if he or she did so, it would then be inappropriate for him or her (if confirmed) to hear cases raising the issue. This is demonstrably wrong. Nobody suggests that a law professor who has published an article arguing that Roe v Wade was wrongly decided is, if he or she becomes a judge, thereby precluded from hearing a case raising the question whether Roe ought to be overturned. There is no such ethical rule, period. So, since it is ok for a future judge to express an opinion in a law review, there is likewise no ethical prohibition against a judge deciding such cases after having talked about the issue in a different forum. On this point, see the Supreme Court (per Justice Scalia) in White v. Republican Party. (Note that I am not talking about questions of the form "how would you vote in such-and-such case which is going to be on the Supreme Court's docket this Term?").

Another part of the assertion is that, if Senators ask such questions, this amounts to extracting promises from judges that they will rule in a certain way, as the price of confirmation. This, too, is simply false. Nobody is asking a nominee to lie about his or her beliefs, or to promise to make judicial votes that he or she disagrees with. These questions are information-seeking, not promise-extracting. They can be, and should be, answered honestly as such.

The other part of the assertion is that it is inappropriate for Senators to want to know such things or to take them into account when voting to confirm or not. On this, again, see Justice Scalia in White, supra; and see Eleventh Circuit Judge Bill Pryor, who stated before he became a judge that it was vitally important that the Senate question nominees about their views, and that the Senate exercise its constitutional authority to block judges if they did not have the proper judicial philosophy. Now, it is conceivable that some Republicans disagree honestly with this, and think that the process should be different; but they cannot legitimately claim that Democrats are doing something bad by taking the role that Justice Scalia and Judge Pryor have recognized as proper.

posted by sam 3:05 PM 2 comments


...not to mention the fact that the Republicans were guilty of such behavior when Clinton nominated Bader-Ginsberg and Bryer.

By Anonymous Stuart, at 4:29 PM  

I do suggest that a law professor who has published an article claiming that Roe v Wade was wrongly decided is effectively precluded from hearing a case raising the question whether Roe ought to be overturned, because he or she is, thus far, effectively precluded from becoming a judge. Whether one believes the Senate has the right to ask such questions about cases that are likely to come to the Court's attention has everything to do with one's opinion on the cases in question. It's a matter of tactics, and these days people take a tactic and call it a principle, and the price of falsified principles is very great.

By Anonymous Anonymous, at 1:37 PM  

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