Bench Memos

re: Questions

We appear all to agree that Gerry Bradley had it about right in describing what sorts of questions ought to be asked of, and answered by, Supreme Court nominees. I’ll make my last contribution (for now) on this subject by reproducing one of Senator Schumer’s questions and commenting on it:

“Do you believe that Roe v. Wade (1973) was correctly decided? What is your view of the quality of the legal reasoning in that case? Do you believe that it reached the right result?”

I can’t see what could be objectionable about this question, under any sensible theory of the ethical obligations of judges–including any reading of the Code of Conduct. Alter the circumstances just a bit. Suppose the president had nominated someone whose views were known on this subject–someone who had published a law-review article excoriating Roe, for instance. Nothing could possibly be improper about asking that nominee whether he still believed what he had published on that score, could it? And we would rightly think ill of the nominee who had published such views but turned coy all of a sudden before the Judiciary Committee, wouldn’t we? I think we would rightly insist on a reaffirmation or a repudiation, and we would not think either one worked any harm to a future litigant where the fate of Roe was at stake.

Now shift back to the nominee, like Roberts, who has said nothing publicly on the question. Everything else remains the same, except we want to know whether he has some hitherto unpublished views on Roe. How can asking whether he has a view, and what it is, be improper? It passes my poor understanding how it could be. And if the canons of judicial ethics exist to safeguard the impartiality of the courts before which litigants appear, then I don’t see how that purpose is served by confirming the judge who has a private opinion and keeps mum. Or are we prepared to say that no one is fit to be confirmed who has ever published an opinion at all? We don’t want to say that, do we? Nothing could more strongly guarantee the squelching of candor by lawyers and legal scholars who have any ambition to serve on the bench, or the nomination of the candid by presidents who want to recognize brilliance where they see it.

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