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Fair Game in Judicial Confirmation Hearings

With the sterling credentials of Judge Roberts and with the relatively thin record available due to his short time on the bench, the left has little ammunition to use to derail this nomination. The only approach the left will be able to muster has two parts: (1) ask the nominee unfair questions, designed to showcase his personal or political opinions and (2) attack the nominee either on the basis of his answers or on his refusal to answer.

There can be no doubt that this is the approach some partisan members of the Senate will take, goaded on by certain advocacy groups, as illustrated by this exchange last night between PBS� Gwen Ifill and New York Senator Charles Schumer (referring to Schumer�s earlier vote against Judge Roberts):

GWEN IFILL: Would that same lack of candor at that time, if it were expressed again in this setting, would that be a disqualifying characteristic for you?
SEN. CHARLES SCHUMER: More so. I'm hopeful that Judge Roberts will realize that when you're being nominated for the Supreme Court, you have a responsibility, an obligation to the nation to fully express your views. I mean, after all, a Supreme Court nominee has huge powers over the lives of average Americans. With the flick of a pen, that Justice can change lives dramatically, tens of millions of lives, one decision.
And to hide your views, not express your views when that is the number one criteria that many of us are using and I think most Americans would use as to whether you should be on the court would not be living up to your obligation. I'm hopeful that Judge Roberts will understand that and answer the questions fully. No one's trying to trick him or play "gotcha."

Schumer is clearly playing to his partisan base, as expressed by groups like People for the American Way and NARAL.

His reasoning, however, is utterly inconsistent with the history of past Supreme Court confirmation hearings and the statements of others in his party have made in past confirmation contexts, as outlined in an excellent paper by Sidley, Brown, Austin & Wood partner Jay T. Jorgensen.

The paper, Precedent from the Confirmation Hearings of Ruth Bader Ginsburg for the Conduct of Judicial Nominees, will likely be widely circulated once the issue becomes joined. It combines quotations from Democratic Senators and citations to the hearings on Justice Ruth Bader Ginsburg�s confirmation to make the point that a Supreme Court nominee has wide latitude to decline to answer questions that would compromise the nominee�s ability to be independent in future cases.

Jorgensen, in particular, notes that Senator Joseph Biden cautioned the then-minority Republican party from certain lines of questioning, saying, �[I]t is useful to recall that testimony before the Judicial Committee by Supreme Court nominees is a new phenomenon.�

Senator Biden said:

�the public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference . . . between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee�s independence and impartiality, and questions on judicial methods and philosophy. The former can undermine the dispassionate and unprejudiced judgment we expect the nominee to exercise as a Justice. But the latter are essential and contribute critically to our public dialog.�

Jorgensen draws seven precedents from Justice Ginsburg�s confirmation testimony. These precedents are telling because, notwithstanding the nominee�s refusal to answer a great many questions, she was confirmed by a bipartisan and near-unanimous vote of 96-3.

Jorgensen�s seven precedents are:

1. Questions must address specific real-world facts and specific issues, rather than hypotheticals or broad questions of policy or belief.

In Justice Ginsburg�s nomination hearings, she refused to answer hypotheticals involving antitrust law, the Free Exercise Clause and the Establishment Clause, saying that she would �prefer to await a particular case� and that these kinds of questions �a judge cannot answer at-large.� In an exchange with Senator Strom Thurmond, she said, �The judge will consider a specific program in a specific school situation, together with the legal arguments for or against that program, but it cannot be answered in the abstract. As you well know, judges work from the particular case, not from the general proposition.�

2. Nominees cannot be expected to give detailed, expert answers to questions involving every legal subject, as no person is an expert in everything.

On questions involving the Second Amendment, Justice Ginsburg pointedly refused to answer, saying that she �had no acquaintance� with the topic and �really can�t expound on it.�

3. Nominees (particularly sitting judges) can decline to answer by citing their experience in deciding cases based on the legal research and argument set forth in briefs, rather than answering general, non-case-specific questions

On the applicability of certain laws to the Congress, Justice Ginsburg refused to answer the question, saying that she would review the case based upon the record and couldn�t answer without seeing �the arguments that parties make on both sides.�

4. Nominees can refuse to answer questions relating to specific cases or controversies likely to come before them as Justices of the Supreme Court

While these seems obvious, it is equally obvious that partisan Democrats will try to ask Judge Roberts how he would rule in cases likely to come before the Court. In Justice Ginsburg�s nomination hearings, she refused to answer questions on Congressional reapportionment, school vouchers and homosexuality because her answers, she said, would give �hints� as to how she might rule. Questions along these lines were �ruled out� by Justice Ginsburg as a nominee.

5. Nominees can give generalized answers to questions that involve judicial management or that address issues impacting the entire judiciary

On questions involving the removal of judges for misconduct, Justice Ginsburg refused to answer, stating that she would defer to the opinions of the U.S. Judicial Conference.

6. Nominees can decline to answer questions (or give general answers) in areas of the law that are evolving or otherwise in flux

When questioned by Senator Moseley-Braun on the question of when government action effected a �taking� of private property (a subject that remains before the Court to this day), Justice Ginsburg said that this issue is �just evolving.� She could not answer, she said, because �There is a clear recognition that at some point a regulation does become a taking. When that point is reached is something to be settled for the future.�

7. Nominees can decline to discuss their personal feelings or reactions to issues or decisions

One way that sharp questioners try to evade the prohibition on queries involving specific cases is by asking the nominee what are his �personal feelings� on a particular issue. Justice Ginsburg faced questions of this kind involving Native American issues and the death penalty. Justice Ginsburg refused to answer, saying, �My own view . . . I think is not relevant to any question I would be asked to decide as a judge. I will be scrupulous in applying the law on the basis of the Constitution, legislation and precedent. As I said in my opening remarks, my own views and what I would do if I were sitting in the legislature are not relevant to the job for which you are considering me, which is the job of a judge. So I would not like to answer that question . . . .�

These considerations will not stop partisan advocates from trying their best to draw Judge Roberts into areas where nominees have not traditionally gone, but lawyers and writers who speak on this effort publicly would do well to keep these precedents in mind.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.