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Bench Memos

NRO’s home for judicial news and analysis.

The Question of Questions



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The Senate Republican Policy Committee has released a paper arguing that for nominees to take positions on specific constitutional questions would compromise judicial independence. I’ve said my piece on this topic in the latest issue of NR, but I can’t resist making a brief comment. The dangers the paper points to are real, but there are prudential concerns on the other side of the ledger—risks, that is, of having a rule that precludes such questioning. It seems to me that the balance of risks has shifted in a way that makes the case for questions about specific constitutional issues stronger. The unprecedented power of the judiciary in the modern era makes the paper’s reliance on precedent unhelpful, or at least not dispositive. And the fact that all the sitting justices have spoken against such senatorial questioning doesn’t get us very far toward resolving the issue, either. Of course from the viewpoint of someone who went through confirmation the process should be made easier; and of course from the viewpoint of someone on the Court the political checks on the Court are likely to appear a nuisance.



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