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Bench Memos

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Another Question About Questions



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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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