Bench Memos

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Candor and the Independent Judiciary


Blogging at the Atlantic, Stuart Taylor predicts that Elena Kagan will recant the view she expressed in 1995, that Supreme Court nominees should candidly answer questions about their views of constitutional questions.  That’s a safe prediction; she already backpedaled in her testimony when she was nominated to be Solicitor General.  But Taylor goes further and argues that Kagan should clam up–”stonewall” is his term for what he recommends.  And it’s here that Taylor’s argument begins to fall apart.  He thinks that the questioning of any nominee foolish enough to answer queries on large jurisprudential issues would rapidly degenerate into demands for specific commitments on very precise constitutional controversies.  And he believes that “[a]ny nominee who fully disclosed her views – no matter they might be – would almost certainly be defeated,” thanks to the “swarm of interest groups” involved in modern judicial nominations.  For this proposition he adduces the single example of Robert Bork, who was fairly candid and went down to defeat.

Sorry, I don’t buy this prediction.  With all due respect to Judge Bork, he probably could have handled his testimony more effectively than he did, without cloaking his views.  And he was a very conservative jurist being grilled by a very liberal Senate majority.  A candid Elena Kagan would still have the friendly venue of a Senate dominated by her own party.  And even in the more hostile terrain of divided partisan control of the Senate and the White House, there is no cause to worry about Taylor’s slippery slope to specific commitments on looming controversies.  That didn’t happen even in Bork’s hearings.

The worst part of Taylor’s argument, however, is when he argues that candor on the part of Supreme Court nominees would “compromise . . . the independence of the judiciary.”  (Taylor even enlists a dubious quotation from Abraham Lincoln on this point–one whose provenance I called into serious question five years ago here at NRO.)  But if there is one thing on which the country has suffered a severe overdose and needs some serious detoxification, it is judicial independence.  Taylor seems to know this and yet not know it, simultaneously.  He ends his piece by saying:

Better to buy a pig in a poke than start down this road.

Why do we face such bleak alternatives? Because the Constitution’s vision of a life-tenured judiciary independent of politics rested on the premise that by and large the justices would not be making national policy. And that premise has been washed away by the vast powers that justices of all ideological stripes have arrogated to themselves.

So, thanks to judicial usurpation and tyranny, undertaken in the service of ideological causes, the justices are no longer the apolitical arbiters of legal cases, but have involved themselves in the making of national policy.  Is there a better basis on which to argue that the independence of the judiciary has been abused, become overgrown, and needs serious pruning?  Yet Taylor cannot see how his final paragraph explodes the entirety of the argument that went before.

Let’s open the poke and look at the pig, please.


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