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More on Questioning Judicial Nominees

On NBC's Meet the Press, moderator Tim Russert pressed White House nomination chief Fred Thompson on the kinds of questions nominee Judge John G. Roberts should expect.

Thompson, a lawyer, former Senator and former minority counsel to the Senate Judiciary Committee, rightly noted that Justice Ginsburg and other past nominees had drawn "a line that should not be crossed". On the question of the propriety of Roe v. Wade, Thompson said that it would be inappropriate for Senators to expect the nominee to answer squarely the question of whether that case was properly decided.

Russert pressed further, however, noting that Justice Ginsburg had made some very specific statements in her nomination hearings on the subject of arbortion. Russert said:

MR. RUSSERT: But Ruth Bader Ginsburg, who appeared in 1993, said this. "[A decision on abortion] is something central to a woman's life, to her dignity. It's a decision that she must make for herself. And when government controls that decision for her, she's being treated as less than a fully adult human responsible for her own choices."

That's a very specific comment on the issue of abortion at her hearing.

Thompson's response was adequate, but missed an important point. As I noted last week, and as more ably referenced in Jay Jorgensen's paper, the issue is not whether some nominees have made statements on abortion, the issue is whether a nominee may decline to answer a question because it would betray the nominee's thinking on a possible future decision or because it more properly relates to generlized propositions as opposed to the discrete fact patterns on which judges may properly rule.

In other words, it doesn't matter if former nominees have chosen to make specific statements on the subject of abortion (or NASCAR or the designated hitter rule, for that matter). What matters is that a nominee may properly decline to answer certain questions that press too far into the nominee's thinking on specific issues.

Consider for example, Justice Ginsburg's response to this (fairly innocuous) question:

Senator Thurmond: What are your views on the constitutionality of some form of voucher system, so that working and middle-class parents can receive more choice in selecting the best education available for their children?

Judge Ginsburg. Senator Thurmond, aid to schools is a question that comes up again and again before the Supreme Court. This is the very kind of question that I ruled out.

Senator Thurmond. Would you prefer not to answer?

Judge Ginsburg. Yes.

Substitute "Senator Schumer" for "Senator Thurmond", "Judge Roberts" for "Judge Ginsburg" and "Roe v. Wade" for "aid to schools" and you can an idea of how the the current nominee may respond and remain in line with prior precedents.

Justice Ginsburg, of course, was confirmed by a vote of 96-3.



Rafael Mangual
Project Manager,
Legal Policy

Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.