Bench Memos

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The Questions Continue


I, too, have been AWOL, although I am happy to rejoin the fray now that I know that Ramesh supports my nomination to the Supreme Court. Now if I can just get him elected to the Senate, I can be assured of at least one vote. I don’t have adequate time to address all the arguments that have been raised, but let me offer a few observations. First, as to Andy’s piece Friday, I think that for the analogy of privileges to align properly with the ability—nay duty—of a nominee not to answer questions based upon the code of conduct, you have to compare privileges which are likewise based in a code of conduct (e.g., doctor-patient or lawyer-client). The other privileges (such as Fifth Amendment right against self-incrimination) may carry negative incentives, but there is not necessarily an external obligation carrying with it the possibility of sanctions outside of the proceeding itself. That is what Roberts must be careful about: the code and the recusal statutes operate independently of his desire to be forthcoming about issues which are likely to come before the court. Andy is right in saying that the Senators may ask any inappropriate questions they like. Roberts may likewise choose to answer, but if he does so, it may come at a price.

Second, Gerry and others have spoken about the need to ask questions about specific cases—presumably specific cases which are still active issues likely to come before the court—because they believe that such questions must be asked for Senators to exercise their art. I obligations of advice and consent. This view finds little support in history. As Gleaves Whitney pointed out previously on NRO, the modern spectacle of judiciary committee grillings is just that—modern. According to Stephen Carter, the current system of questioning did not arise until after Brown v. Board of Education, and most judges didn’t even appear before the Senate prior to 1925. I suspect that my interlocutors will argue that Congress had the power even back in the day, but didn’t use it. But that is not their argument as I understand it: I understand their argument to be not that they have the ability to ask these questions, but the constitutional necessity to do so in order to fulfill their duty under art. I. This is an incredible statement. Is it more necessary now than after Plessy? More necessary than after Dred Scott? Controversial issues did not come before the Court for the first time in the 70s.

This leads to what I presume will be the next response: it is worse now because the Supreme Court has become politicized. Ah, it is always a tad peculiar to see conservatives use the “times have changed” argument. While I am sympathetic to the view that we on the Right need not carry out unilateral disarmament—lamenting the politicization of the bench but doing nothing to stop more partisans from joining its ranks—I do not see how failing to ask about specific cases forces us to accept the politicization of the Court. To the contrary, no one has yet explained to me why it is that Senators could not ask questions about judicial philosophy and methodology which would be far more useful in determining how the judge approaches the Constitution than merely asking whether he agrees with a particular case which is likely to come before the court again. For example, Roe is used by both sides of the aisle not merely for the principle of the case itself but as a proxy for how the nominee views the Constitution—that is, do they believe in a living or originalist/textualist Constitution; do they believe in enforceable, extra-textual rights, etc. However asking about agreement or disagreement with a particular case can be deceptive. You could be conservative, and still believe, for example, that the federal partial-birth abortion statute is unconstitutional. And yet, this does not tell you whether the person approves or disapproves of the privacy rights found in Roe. Accordingly, instead of using a proxy, why not ask the questions directly, as I suggested here. In this way, you can see whether the judge views the Court as another political or legislative body, which is, I would hope, the real concern.

Finally, I believe that Mark is right when he suggested that the code of conduct is based in the Constitution. That is why I began this post by suggesting that Roberts has a duty not to answer questions that violate the code—that is, questions which infringe upon the independence and insularity of the judiciary as found in art. III. Yes, this sets up a constitutional clash between art. I and art. III (albeit a non-justiciable political question). But in this clash there is a long tradition of judges not answering questions about pending cases based on their art. III insularity, while the tradition of grilling nominees with questions about specific cases has a far shorter, and, I think Judge Bork would agree, less respectable pedigree.


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