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Bench Memos

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Mark’s Questions



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Mark is surely correct that the Senate ultimately decides whether the nominee’s answers are satisfactory or not. He is also right that the nominee will ultimately decide what to answer, and how. I would not suggest questions, however, if I did not think it was appropriate for the nominee to answer them – and that the nominee should answer them. That Roberts probably won’t answer the questions seems to me to be beside the point. I was addressing what I think should happen, not predicting what will happen. If Roberts doesn’t answer the questions and gets confirmed anyway, it will be because there is enough sentiment in the senate that a nominee needn’t answer such questions to win confirmation. I am taking issue with the merits of that sentiment. I am not doubting that the sentiment exists.

I think we just disagree about the attorney-client privilege being no more or less important than judicial ethics rules. The attorney-client privilege, while codified in many codes, would exist even if there were no codes. It is rooted in the constitution, common law and tradition. It would be a proper basis for any attorney or client to decline to answer a question about their covered communications in any hearing congress was empowered to hold, and I don’t see why nominees for the bench should be any different. Moreover, even without attorney-client privilege, Roberts’ communications with executive branch members would probably be covered by executive privilege. (I suspect we agree, for example, that the administration could have and should have withheld the Roberts memoranda that have been disclosed to the senate so far – and despite which there will still be demands for more disclosure.) That is, there would be an independent separation-of-powers basis not to answer such questions – and, indeed, to discourage asking them.

What I am talking about here are rules of lesser pedigree which one commonly finds in codes of conduct. The ABA, for example, could promulgate a rule tomorrow that said: “A lawyer shall not question an unrepresented person under any circumstances,” and that rule could be adopted wholesale into various state codes of conduct. Does anybody really think such a rule could properly bar a prosecutor (or an FBI agent who happened to be a lawyer as many are) from questioning an arrestee after administering Miranda warnings? A judicial code could just as easily provide that “under no circumstances will a judge discuss legal issues outside the confines of litigation over which he is presiding.” The profession is certainly entitled to adopt stupid rules, and maybe one such as that would make it improper for judges to write law review articles or give speeches. But it would not (or at least should not) be the slightest hindrance on the senate – or, for that matter, on a president and his staff in conducting interviews to decide whom to nominate. To take any other position would improperly cede constitutional authority to private rule making bodies.

This doesn’t mean codes of conduct are unimportant. I agree with you that they are very important. A prosecutor has no general warrant to ignore the professional rules. They must be followed to the extent they do not conflict with his higher duty as an official of the executive branch. Such conflicts are rare, but when they happen there should be no doubt about which is the weightier responsibility. So, yes, the Code of Conduct is, as you argue, “help[ful] in drawing lines.” It just is not controlling for all purposes – and where it would actually frustrate a higher duty, it should be ignored.

Constitutional functions are what should control here – the usual interplay of competing branches both respecting each other and protecting their individual turf. As I said, I don’t have a problem with the concept that a nominee should not render an opinion about a pending case, and a nominee should not make – and I don’t think can make – binding promises to rule a particular way on a given fact pattern that might come up. Those things are necessary to the integrity of the judiciary. Senators should respect that and not ask such questions. If they do ask, nominees should decline to answer. But opining, if asked, that, say, Miranda is poorly reasoned would not obligate a nominee to rule a certain way in a future case in which the voluntariness of a confession was at issue. Meanwhile, it’s a legitimate question because an answer tells us, in concrete terms, what the nominee thinks about judicial legislating of the kind typified by Miranda. Now, I fully agree with your apt contention that there are other ways to get at the same information. I just don’t find anything offensive about the direct approach.



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