After reading Andy McCarthy’s piece today on Charlie Schumer and his questions for John Roberts, I guess I am oddly in the middle position here. I think we can learn a lot more from a nominee by asking explicitly and repeatedly about his judicial philosophy without imperiling the judge’s duty of impartiality to litigants. Proponents of the Schumer standard have yet to effectively address the judicial ethics problem. Instead, they focus almost exclusively on the public’s right to know, and they seem to believe the right to know can best be discerned be dismissing judicial ethics. As a practical matter, no nominee will follow this approach because they can’t. Roberts is a sitting judge. He will either remain a judge or be elevated to the Supreme Court. So, the Schumer approach will not reveal the information its advocates seek. Schumer himself surely knows this, and will use it as another pretext to vote against Roberts.
If a judge has said during his confirmation hearings that this case or that case was decided rightly or wrongly, rather than speaking to his judicial philosophy and approach to interpreting the law, he will have badly damaged his duty to impartiality. And if I represented a client before this judge, and he had taken a position on a specific case that I had to rely on as precedent, I would seek his recusal if his position differed from the position I was arguing on behalf of my client. Therefore, even if this judge had answered Schumer-like questions as some urge, these are the real-world consequences of the approach.
This is not to say a nominee should get a pass. Absolutely not. I think all nominees should be grilled about their judicial philosophy, which is a far more fruitful pursuit. He should be asked to explain both his broad view of a justice’s role and his understanding of specific constitutional provisions. Does he believe in a living and breathing Constitution? When is precedent controlling? Is the text of the Constitution controlling? How does he believe the text’s meaning should be discerned? Does the Supreme Court have the final say on all constitutional matters? What, if any, role do the other branches of government play in the process? One could develop a laundry list of such appropriate and revealing questions.
And the nominee should be asked about the various sections of the Constitution–from the commerce clause, the takings clause, the religion clauses, the due-process and equal-protection clauses, etc. These kind of questions are boundless.
In other words, there is an appropriate way to learn all we need to know about a nominee without compelling the nominee to seek appropriate refuge behind ethical obligations, in which case we will learn little from the hearings.
As for the Ginsburg standard, it should be rejected completely. She refused to answer even the most basic questions about her judicial philosophy, and she was given a pass by Senate Republicans. Given the extraordinary (and in many ways unconstitutional) power the Supreme Court now exercises, no nominee should be confirmed who stonewalls repeatedly where no ethical obstacles exist. The Senate’s dereliction in the Ginsburg case should not serve as a model now or at any time.
–Mark R. Levin is author of the bestselling Men In Black, president of Landmark Legal Foundation, and a radio talk-show host on WABC in New York.