Bench Memos

Again on the Scope of Questioning

Today Sen. John Cornyn at NRO, and former solicitor general Theodore Olson in the pages of the Wall Street Journal, offer arguments on the range of permissible questions for Judge Roberts that culminate–whether Cornyn and Olson realize it or not–in the conclusion that we ought not to have hearings on Supreme Court nominees at all. Or at least no hearings at which the nominees themselves appear to answer questions. Olson puts the case succinctly:

The most appropriate response to these questions [about how he views past rulings that might be revisited] is for the nominee to promise an open mind in every case, receptivity to the arguments of counsel, the views of colleagues and due respect for the written text, history, precedent, context and factual setting of a particular matter. And he should promise to render future decisions free from preconceived or pre-expressed opinions as to how a case should be decided. We expect no less from a judge; and that is the only response we should expect to hear during confirmation proceedings. Anything else bargains away future judicial independence.

I have previously given longer responses to such arguments, so for now I’ll offer my short one: horsefeathers. If this were all we had a right to expect from nominees to the Supreme Court, we could dispense with having them appear before senators at all, since every nominee will promise all of the above as a matter of course. I’d like us all to live in a world in which the judicial power were once again its original size, and we could confine ourselves to the narrow questions of a nominee’s technical qualifications, experience, and character. When we lived in that world we had no need for such extended hearings with personal appearances by the nominees. We don’t live in that world today. As for “judicial independence,” it’s something we’ve seen far too much of for about a century now. And I cannot fathom the shortsightedness of the GOP party line–which I think is represented by the Cornyn and Olson articles–in disarming the Republicans from tackling, hard, the next liberal judicial activist to be nominated to the Court by a Democratic president.

The New York Times invited five people to frame five questions each for Judge Roberts, and they appear on the Times’s op-ed page today. I like most of them, but Glenn Harlan Reynolds and Ron Klain (yes, Ron Klain) ask the best ones. They make for better reading, I’m afraid, than do Messrs. Cornyn and Olson.

Matthew J. Franck — Matthew J. Franck is the Director of the William E. and Carol G. Simon Center on Religion and the Constitution at the Witherspoon Institute in Princeton, New Jersey.

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