July 25, 2005, 9:28 a.m.
Ask Not
Our crazy rules for judicial nominees.

EDITOR'S NOTE: This piece appears in the August 8, 2005, issue of National Review.

The Senate faces a momentous decision in deciding whether to confirm John Roberts as Justice Sandra Day O’Connor’s successor on the Supreme Court. Roberts would have great power to determine whether the death penalty will be curtailed or expanded, how the war on terrorism will be fought, which regulations of abortion will be allowed, whether same-sex marriage will be the law of the land, and what types of affirmative action governments may practice. He may not be able to set local traffic laws or to wage wars. But he will do more to determine how Americans are governed than any senator, or any five senators.

Yet it would apparently be wrong for senators to ask him how he would exercise this vast power. In our current political order, elections for the Senate may turn on the candidates’ positions on abortion even though senators do not set abortion policy. But the people who do set abortion policy are not to be asked how they will rule. It is permissible to interview a candidate for the job of Supreme Court justice. But the hirers are not to ask for the answers they most want to know.

That position, however absurd it may sound, has been embraced by the Republican party. Even before Bush named a nominee, most Republicans in Washington were saying that questions about how the nominee would rule on specific issues are off limits. They say that questions about professional qualifications are proper. Questions about “judicial philosophy” may also be proper, some Republicans will allow. But even they draw the line at asking the nominee about the implications of his judicial philosophy.

Republicans have adopted this principle for reasons of both high principle and low politics. The high principle is that if nominees must answer specific questions, it will compromise their independence. The political calculation is that it will compromise their confirmability.

If the goal is to get Roberts, or any future Bush nominee, confirmed, then a rule that allows only extremely general questions is obviously useful. . .

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