Friday, August 12, 2005


There are arguments from both liberals and conservatives for Supreme Court nominees to be more forthcoming in confirmation hearings.

The Robert Bork and Clarence Thomas confirmation hearings are infamous for discussions of "back alley abortions" "segregated lunch counters" (Sen. Kennedy's assertion of Robert Bork's America) and a "high tech lynching" (Clarence Thomas's version of the process itself). Other confirmation hearings, while less combative, have since been shadowed by those searing events. Today, political parties of both sides strive for competitive advantage when it comes to grilling or protecting nominees. Senator Joseph Biden told Ruth Bader Ginsburg that she did not have to answer questions that she didn't want to answer. Biden told the Judiciary Committee...

"the public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference"

Republicans are now urging the present-day Judiciary Committee to follow the Biden Principle and are urging restraint from their colleagues on the other side of the aisle. But there is an interesting discussion going on, in both left-wing and right-wing circles, that now centers on whether a judicial nominee's reluctance to talk at all is warranted.

EJ Dionne of the Washington Post wrote in Friday's edition in an op-ed piece entitled, Stop the Roberts bombing.

Fellow liberals, face it: The advertisement created by NARAL, the abortion rights group that opposes John Roberts's nomination to the Supreme Court, is outrageous. It ties Roberts to people who bombed abortion clinics. If this isn't guilt by association, I don't know what is.
Precisely because he has such a thin record of public writings, Roberts himself has an obligation to be forthcoming in answering questions about his views, especially on cases that have already been decided. The debate over Roberts should be civil. But you cannot have a civil debate on "the issues" if Roberts' supporters insist that "the issues" cannot be discussed and that he is perfectly free to decline any exploration of his outlook on important matters that will face him as a justice.

Dionne argues that "phony issues" can be cast aside if a nominee answers more pointed questions. Dionne is an admitted liberal and conservatives might point out that he is trying to paint Roberts into an ideological corner from which the judge might not escape from. But a conservative law professor is suggesting something similar to what Dionne is arguing.

Law school professor Gerard Bradley of National Review Online's "Bench Memos" says that the constitution is the supreme law of the land, senators must uphold their oath to defend the constitution and therefore, must make sure that nominee's pass sufficient muster in order to make sure they too will respect the constitution. Professor Bradley, assuming the role of a senator, writes...

I wonder just how it is that I - as a senator - would be living up to my responsibilities to the Constitution and to the people were I to say: "Mr. Nominee, you have told us nothing definite about what you think the Constitution says about secularism, abortion, same-sex marriage. At least, I do not know where you stand. Very well. I consent to your lifetime appointment to the Supreme Court. I pray you do the right thing there."

Of course, there are rules that concern how far questions can stray and how much nominees can answer because of concerns about impartiality regarding future cases that will arrive at the bench. Former Attorney General Edwin Meese wrote for the Washington Times that...

Canon 5 of the Model Code, among others, forbids judges or judicial candidates from indicating how they will rule on issues likely to come before the courts or making any statement that would create the appearance of partiality. This rule is critical to an independent judiciary. Justices must remain open-minded when an actual case comes before them. They must not even hint how they would rule.

There is now serious debate from both sides of the political spectrum that nominees are now revealing enough about their jurisprudence when it comes to how they will view and treat the constitution as federal judges. Judging from recent controversies concerning nominees to the federal bench, this debate is sure to continue unabated.

EJ Dionne, Jr.: Stop the Roberts Bombing, Washington Post

Law Professor Gerard Bradley, National Review Online's Bench Memos

Edwin Meese: The Ginsburg Rule, Washington Times


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