Bench Memos

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Re: Andy’s comment, the Constitution’s advise and consent role belongs to the Senate. It has nothing to do with what the nominee testifies about (or chooses not to answer). If the nominee’s answers are unsatisfactory, the Senate can vote him down or just leave him hanging. It happens all the time. But I am interested in pursuing this line of thinking a bit further.

If, as asserted, the Senate’s advise and consent power trumps ethics rules adopted by the judiciary to manage its own conduct, does it trump an executive branch attorney’s ethical obligations as well? Should Roberts answer all questions about his confidential and privileged communications? They’re no more or less important than judicial ethics rules (whether silly or otherwise, they exist). Both are intended to protect their respective institutions. (As an aside, my prosecutor friends are the first to insist that Congress not interfere with their investigations by conducting oversight hearings, which is also part of Congress’s constitutional authority, i.e. legislating and appropriating. I tend to agree with my prosecutor friends in this regard.)

If the Code of Judicial Conduct doesn’t help in drawing lines, at least for the nominee, then what are the lines, if any? Every question must be answered, short of making sworn promises about ruling a particular way on a particular case? Beyond reference to one case, Roe v. Wade, the proponents might want to flesh this out a little more for the rest of us. (Obviously, there are and will remain fuzzy areas, but I’ve not seen much by way of examples.)

Also, why question a nominee in a way that ensures a non-responsive answer? Despite what’s debated here, the fact is that Roberts will not answer certain questions that he believes would result in him running afoul of the ethics rules. What’s the point? Moreover, should senators who ask the questions urged by some here, but which go unanswered, vote against Roberts? A laundry-list of Schumer-like questions, which Matthew and others (I believe) support, will get us nowhere. If we want to know what makes Roberts tick, there’s a myriad of questions that can be asked which would be far more useful and informative and avoid ethical problems. In the end, this is the only approach that will work.


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