Bench Memos

NRO’s home for judicial news and analysis.

Another Question About Questions


Robert Alt’s response to my post on questioning judicial nominees is very sensible and very largely right. The whole of it deserves a more careful and lengthy response than I can here offer. This intervention is just a request for clarification of Robert’s position.

Robert deploys a remarkable counterfactual in aid of his point. He imagines that Gerry Bradley is nominated to the federal bench. He imagines (he thinks) that I have been very hard on Roe in a scholarly article or at a Congressional hearing, all but saying that it should be overruled. (Note to Robert: no need to imagine: it’s true. And that is one reason why my
nomination is and will remain a counterfactual.) Thus far I think that
Robert maintains I could still be a qualified nominee. Thus far described I would not be unsuitable due to bias or prejudice or the appearance of impartiality. Robert even adds that, if I were nominated tomorrow, it would be a “fine” idea. (I am now forwarding Robert’s post to my Dean.)

Robert still doubts that I should answer questions about reversing Roe at my (hypothetical) confirmation hearings. He cites the code of conduct for judges. I surely agree with him that, if the code clearly prohibits me from answering, there’s an end to it. No overriding moral norm (of candor or full self-disclosure) would prevent me from politely declining to answer. And I would cite the code to the Senator asking. My question to Robert is whether he rests his case right here; the positive law rather clearly requires reticence, and that law should be observed. If the premise about clarity is correct, then I agree.

But then the code would be a little silly, or at least idle. It would seem to be merely about appearances, even about incomplete or misleading
appearances. For my views on reversing Roe would remain unmistakable. I
would still surely possess views which would ….what? make me biased if I were to state them here, today, at my hearing. Can’t be that. Or, create the appearance of bias if I stated them here today? Maybe, but don’t forget that my views on Roe remain in the public domain; they’ve never have been publicly retracted or modified.

Repeating my anti-Roe views at the hearing probably does add something to the appearance and reality of my “bias” in any abortion case coming up to the Court. But not very much, I think. Not enough to really worry about. My question to Robert, now is: if you mean to rely upon “policy” or the “point” or the sense of the law to clarify uncertain language, is this incremental appearance of bias the point?


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