In Gerry’s last post, he states: “I do not see why it is categorically wrong to ask a nominee: do you have a settled view on this, Mr. Nominee, and if so would you publicly state what it is?” Now, I think we can agree that the question is not whether it is wrong to ask the question, but rather whether it is wrong to answer the question. Here, context matters. Thus, if Gerry wanted to issue a statement, perhaps in testimony to Congress, stating that as a law professor, he firmly believes that Roe was wrongly decided, and that he agrees with the school of interpretation that says that stare decisis should carry less or little weight in constitutional cases, thereby arguing that Roe should be on the Supreme Court chopping block anytime it comes up, that’s fine as a matter of ethics law. [I should note that I have never chatted with Gerry about either of these issues, so this really is just a hypo, and is not meant to actually speak for his views on the issues.] But if the President were tomorrow to appoint Gerry to the federal courts—a fine idea, I might add—he becomes a nominee, and is bound by the Code of Conduct for U.S. Judges, which admonishes nominees not to express opinions about pending or impending cases. Then there is a serious issue about whether he could make the same statement.
Admittedly, there is a double standard here. A judge can issue a statement in a judicial opinion, in which he or she makes it perfectly clear that a certain legal theory is frivolous, thereby creating a binding precedent which provides litigants with a solid insight into the fact that the judge is unlikely to side with the opposite view in the future, even if their case is pending or impending before the judge. (Of course, Justices Stevens and O’Connor have shown that consistency is a hobgoblin which fastidiously avoids them.) But that same judge is not supposed to go out to give a speech opining on the very same issue if cases are pending or impending. Again, context matters: in one case the judge is exercising judicial power and actually judging the case, in the other, he or she is seen to be prejudging cases outside the context of the bench.
I think Gerry was correct in his previous post, in which he suggested that the questioners and the respondent will both dance around how the questions are asked and answered in attempts to assure everyone that the questions do not go to future cases. But we all know that the claim that they are not seeking information about how the nominee would judge future cases is a fraud, and, given questions that Senators actually asked nominees such as Estrada (some of which I mention here), it is a poorly orchestrated fraud. The questions are intended and designed to elicit how it is that the respondent will judge the next hot-button Roe-like case to come before the court. And the desire to get answers is not limited to Schumer, but extends to writers on this very page, who think that nominees should be forced to say what they think about Roe and gay marriage, almost assuredly not out of some academic interest, but because they know that these issues are impending before the court, and they want assurances that the judge will rule in a manner with which they agree. This is precisely what the Code and recusal statutes attempt to avoid: the appearance that a judge has already made up his or her mind about pending or impending cases.
Of course, this does not mean that we are hamstrung, and cannot know anything about how the nominee would approach cases. Indeed, we can know more. We can ask questions about legal philosophy and methodology (some of which I outline here ), which at once will be more helpful in revealing how it is that the nominee will address novel, expansive, living Constitution-type claims, while not violating the letter or the spirit of the ethics codes. Conservatives should be more concerned about philosophy than outcomes. For example, I am reasonably sure that Judge Harvey Wilkinson would answer the Roe question to the satisfaction of many conservatives, but I think that conservatives should find it troubling that his legal philosophy, as expressed in a law review article he wrote, suggests a very expansive view of substantive due process and privacy rights—one which would create a constitutional right to personal appearance. Here, asking the pointed Roe-like questions would be far less illuminating than asking him about his thoughts on how we determine the scope of unenumerated rights, such as those that he sought to have recognized in his article.
Accordingly, I believe that there is a reason to treat a nominee differently than judges or academics who have previously made their opinions known. Furthermore, I believe that conservatives and liberals who want to know what a nominee believes about certain cases are far better served by asking questions about the judicial philosophy and methodology that infuse the decisionmaking process. This way, the questioners can learn more, and the nominee is not asked to give his precise views about cases which are likely to come before the court.