is a longtime reader of National Review. He mentioned us in his opening remarks:
“My fear today is that many have come to believe that to expect objectivity in judges is hopelessly naive. Liberals and conservatives openly make this point. Our able colleague, Senator Schumer, when he chaired the Courts Subcommittee, held hearings contending that all judges have ideologies, that we should admit that their political views affect their decisions, and we should openly inquire about these personal beliefs. A writer in the conservative National Review complained that Republicans are hurting the conservative cause by insisting on ‘abiding by those outdated norms.’ In effect, he suggests conservatives should get their guys in there to promote conservative ideas.
“While many advocates on the left and right would like a court that promotes their agenda, I do not want that and neither do the American people. What we must have, what our legal system demands, is a fair and unbiased umpire who calls the game according to the existing rules, and does so competently and honestly every day. This is the American ideal of law.”
I’m the writer in question. I join Senator Sessions in not wanting a court that promotes my agenda. I would not want courts, for example, that outlaw abortion or strike down governmental racial preferences simply because I happen to favor both of those things. Indeed, I don’t want courts to do either of those things even though I would like legislatures to do them. I also join the senator in wanting fair, unbiased, competent, and honest umpires.
My point, in the article in question (subscription required), was that Senate confirmation procedures that are appropriate for maintaining a fair, impartial, objective, self-limited judiciary may not be appropriate for correcting a judiciary that is none of those things.
To put it another way: There are good reasons for adopting a convention that limits the questions senators can put to judicial nominees or limits expectations about getting answers to those questions. As I wrote, expecting such answers could “cause confirmation hearings to degenerate into campaigns to get nominees to follow particular party lines. A nominee who pledged always to vote for pro-lifers, or always to vote for racial preferences, to get confirmed would be undermining the rule of law and the impartiality of the judiciary.” But there are also good reasons against adopting such conventions. They tend to reduce our ability to check judicial willfulness.
Whether to adopt such conventions is a prudential call. But the greater the degree of unconstrained judicial power happens to obtain in the political system at a particular time, the more important the possibility of using confirmation hearings as a check becomes. That was what I meant by the reference to “outdated norms.”
Note that at no point does my argument touch on the question of whether nominees should be asked about their “personal beliefs.” I find it hard to picture circumstances in which it would permissible to ask a nominee whether he thinks abortion is immoral or even whether he thinks it should be illegal. I do think there is an argument for asking the nominee what he thinks the Constitution says about the matter.
So, in short, I think Senator Sessions and I agree about more than he seems to think.