In sorting through the question about questions (by Senators to a judicial nominee), we should bear in mind that John Roberts is the exceptional candidate. I mean here that, for him to be led into revealing where he stands on Roe, federalism, same-sex marriage, the church-state issue du jour–or on a lot of other issues–we would learn something we do not already know. It would be news. And it might seem to some (though not to
me) that Senators were prying, or compromising his openness and impartiality.
But most nominees to the federal bench have committed themselves on matters about which Roberts has either been silent, or has spoken only in roles which refract his own opinions and beliefs. Almost any professor nominated to the bench will have spoken more or less definitively on such matters. Most sitting judges nominated will have, too. Even politicians sometimes get called to the bench. They have been known to shoot their mouths off, too.
The point is that we know what these folks think of so many issues on which Roberts’S views remain mysterious. There should be little doubt, for example, where Mike McConnell would come out on church-state issues, or where Mike Luttig would stand on partial-birth abortion, or where Oririn Hatch stands on abortion laws more generally. Do they all lack some requisite judicial objectivity? Openness? Impartiality? If we discovered somehow that Roberts has similarly definite views, would he?
The limit of any restrictive account of Senatorial questioning is right here: no sound account will implicitly disqualify so many obviously qualified nominees, including so many sitting judges. And, if possessing publicly stated views on important but perhaps controversial issues does not disqualify a nominee (it shouldn’t), 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?