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Bench Memos

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RE: Questions



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I have to register my dissent from Brother Levin’s strictures about the propriety of questioning Court nominees about their views on constitutional issues. I think Justice Scalia was wrong to recuse himself from the Newdow case on the Pledge of Allegiance, as I wrote here almost two years ago, and I argued here two weeks ago that broad questions of constitutional law are directly the business of all of us in any confirmation hearing for a Supreme Court nominee. Nominees may refuse to answer any question, of course, but there is nothing wrong with making their answers to them dispositive of one’s vote as a senator on confirmation.

Recently a correspondent asked me to elaborate on how I would distinguish between proper and improper questions. Here’s what I said:

I would distinguish between gross and fine questions of constitutional meaning. Take abortion as our example. It is clearly legitimate to demand an answer regarding the rightness or wrongness of Roe v. Wade. If a nominee says he believes there it was wrongly decided, we have the answer we want, and I don’t see how he compromises his judicial integrity by answering. We would still want to know how much force he regards precedents as having if they were wrong from the start, and such questions can be properly framed too. If he says, on the other hand, that he regards Roe as correct but is unsure about the scope of the abortion right and would prefer to reserve judgment about the finer points regarding particular partial-birth abortion bans, or just what an “undue burden” is, or whether a judicial bypass is adequate in a parental-notification statute–that’s another matter, and I’d let him off the hook. But of course we would have the answer we want on the gross question regarding Roe, wouldn’t we?

Or take the cluster of issues regarding gay rights. Surely every potential nominee to the Court has an opinion about Lawrence, and we’re entitled to know it. Disagree with Lawrence? Fine, we have an answer to a gross question. Agree with Lawrence, but haven’t decided yet about various spin-off questions? Then maybe we shouldn’t press, but we know what we want to know. I think gay marriage is a similarly gross question, whatever one might think about it as a mere extension of Lawrence. Consider it this way: Just fifteen years ago or so, a question about whether the equal protection clause entitled two persons of the same sex to marry would have been considered a risible question, with “NO!” the obvious answer for everyone but a handful of fringe law professors. Why does it become a question that we must skirt today, precisely because more people have lost their minds and believe the answer may be “yes”?

The fine questions regarding pending or foreseeable cases should be avoided because they are actually hard, where the gross ones are easy. And the fine ones are hard because they involve careful judgment regarding specific fact patterns. Assume the 14th amendment incorporates the 4th, and that the exclusionary rule is a legitimate gloss thereon. Then it’s a fine question whether, when a motorist stopped at a random sobriety checkpoint is compelled to open a backpack in his trunk when a drug-sniffing dog signals for contraband, the evidence discovered therein should be suppressed. But I don’t see why a nominee can’t be asked what he thinks of the gross questions whether the 14th incorporates the 4th, and whether the exclusionary rule is a valid gloss.



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