Bench Memos

The Abortion Questions

Ed is correct that the USA Today account of General Gonzales’s statements is garbled and self-contradictory. Ed has also done a beautiful job explicating the “Ginsburg standard” that governs this whole matter.

In short, some Senate Judiciary Committee members now say they will demand answers from Judge Roberts on two kinds of abortion questions: personal views and legal analysis.

“Personal view” questions: Judge Roberts’s personal views on abortion are utterly irrelevant to how he would rule on legal questions before the United States Supreme Court. Other nominees have declined to give their personal views, and Judge Roberts should too, lest anyone think such views would influence his future rulings. One thing we know about him is that he believes in applying the law impartially and fairly. Part of what it means to be a judicial conservative–as opposed to a liberal–is that judicial conservatives do not impose their own policy preferences from the bench.

Judge Roberts has already testified under oath before the Judiciary Committee two years ago that nothing in his personal views would prevent him from impartially and fairly adjudicating cases involving abortion. Senators can ask him that question again if they want, but we already know the answer.

“Legal analysis” questions: With respect to legal issues such as whether Roe v. Wade was correctly decided, Judge Roberts must refuse to answer questions from Committee members. As clearly stated by Sen. Joe Biden and then- Supreme Court nominee Ruth Bader Ginsburg in her 1993 Judiciary Committee hearings, to answer such questions on issues that will come before the Court in the future undermines the independence of the Court and would violate canons of judicial ethics. Judge Roberts accordingly must refuse, like all prior nominees, to answer such questions.

If any nominee were to answer such questions, as Justice Ginsburg put it, he would “act injudiciously” by giving “hints, forecasts, [or] previews” of how he might rule. This can give rise to expectations on the part of litigants and the public that can undermine both the fact and appearance of a justice’s being impartial once an actual case with real parties comes before the Court.

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