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Questioning Supreme Court Nominees About Their Views on Specific Questions:

I have a post about this on the L.A. Times LiveCurrent blog, but I reproduce it below. The question posed was, "Is it appropriate to ask a Supreme Court nominee his/her views on specific issues that are likely to come before the court?" Here's my response:

Tough question -- good arguments on both sides. Right now, let me just air one.

Judges are obligated to think carefully about the parties' arguments in every case, and be open to changing any preconceived views they may have. Naturally, they'll often adhere to their earlier views -- but sometimes they do reconsider. (For some examples of how justices' views have changed from one decision to another, see here; but they may also change their minds from their pre-confirmation views, when they first face a concrete case that requires them to seriously focus on the matter.)

Occasionally, a justice's vote will deeply disappoint those who wanted to see him on the Supreme Court. It might even differ from views he stated in pre-appointment opinions or articles. But observers will generally just assume he changed his mind, though they might bemoan the change.

But imagine a justice testifies under oath before the Senate about his views on (say) abortion, and later reaches a contrary decision. "Perjury!" partisans on the relevant side will likely cry: They'll assume the statement made with an eye towards confirmation was a lie, rather than that the justice has genuinely changed his mind. Even if no calls for impeachment follow, the rancor and contempt towards the justice would be much greater than if he had simply disappointed his backers' expectations.

Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion. Yet that would be a violation of the judge's duty to sincerely consider the parties' arguments.

Of course, there'd be little pressure of this sort in a political system in which people assume their adversaries are basically honest, disagreements represent honest differences, and changed positions represent honest changes of mind. When you find such a political system, please let me know.

Related Posts (on one page):

  1. LA Times Live Current Blog:
  2. Questioning Supreme Court Nominees About Their Views on Specific Questions:
ed in texas (mail):
The problem being that political adversaries are now assumed to be not honest and misinformed, but evil.
(There's a kum-ba-ya joke in there somewhere.)
7.10.2005 1:00pm
Msr Parker:
How much of the process focuses on why judges made the past decisions they did? If there is one profession politicians should be stacked with its lawyers so shouldn't be capable of examining the thought process of judges? Or, failing that, contructing obstacle courses.
7.10.2005 1:18pm
Tumbling Dice:
Msr Parker -

I could be wrong, but I'm pretty sure that in his heart of hearts, Sen. Drunkennedy does not actually believe that Bork wanted the America he claimed Bork wanted.

But, it being a political process, it does not matter that many of the Senators have some legal training and could approach the situation with the honesty you seem to suggest. It's all about, for both sides, the cameras and making hay for your base - which both parties mistakenly believe consists only of the fringes most of the time.

I'm a conservative, and nothing was more frustrating than reading of the republicans' "support" of Janice Rogers Brown. There is a very good article on this on the Reason website - though this isn't really an example of pandering to the extreme right wing so much as to the media.
7.10.2005 1:47pm
Scott Moss (mail) (www):
Good point. Sometimes, Justices change their mind (as discussed recently on this blog), and that doesn't necessarily indicate lying at a confirmation hearing. Other times, it seems pretty clear the nominee for a position as a Justice lied to evade hostile questioning. E.g., Clarence Thomas:

(1) At confirmation hearing in 1991: "The Court has established the Lemon test to analyze the Establishment Clause cases and I have no quarrel with that test. The Court of course has had difficulty in applying the Lemon test and is grappling with that as we sit here, I would assume, and over the few years -- past few years. But the concept itself, the Jeffersonian "Wall of Separation," the Lemon test, neither of those do I quarrel with.

(2) Just two years later, a Scalia opinion that Thomas joined mocking Lemon mercilessly: "As to the Court's invocation of the Lemon test: Like some ghoul in a late- night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District.... I agree with the long list of constitutional scholars who have criticized Lemon and bemoaned the strange Establishment Clause geometry of crooked lines and wavering shapes its intermittent use has produced.... I will decline to apply Lemon--whether it validates or invalidates the government action in question...."

Yes, I suppose there is some metaphysical uncertainty; perhaps in just two years Thomas so changed his views -- from repeatedly asserting that he had "no quarrel" with Lemon to joining a decision harshly criticizing, mocking, and refusing to apply it. In reality, this is one of the most blatant flip-flops from confirmation hearing testimony....
7.10.2005 1:58pm
myalterego (mail):
Scott,

One reflection I would make on instances like the Thomas quote on the Lemon test is that (1) the view must look very different from the bench than from the confirmation hearing, and (2) Justice Thomas probably hadn't focused a great deal of time and energy on Establishment Clause jurisprudence before he joined the Court. This latter point is speculation on my part, but if we assume it's true, then Professor Volokh's point about a justice changing his mind based on actually confronting a case rather than a hypothetical comes into play. To me it is perfectly plausible that after having the time to confront the Establishment Clause jurisprudence, either as a litigant or judge, one could begin to think that it has been an ad hoc decisionmaking process that should be rectified through some sort of bright-line test (either a complete separation of church and state, or alternatively the view that Justice Thomas has expressed this term and last that the Establishment Clause does not bar many instances of interaction between church and state). As to my first point about the view being different from the bench, I recall reading something about Justice O'Connor recently (perhaps here at VC) that essentially said that as her career went on, she became less deferential toward legislatures. This makes sense because while starting as a Justice, one may not want to look like s/he is exercising mere judicial fiat in making decisions. As time passes, however, the Justice understands better the bounds of the Court's authority and how it is accepted. Perhaps Justice Thomas just reached that point of less deference earlier in his career on the bench.

With respect to the original question, I think it is more useful for the Senate's Advise and Consent function to ask about broader judicial principles than about specific decisions. Perhaps the most important question for the upcoming nomination hearings is how a nominee views stare decisis. Justice O'Connor thought highly of it, Justice Thomas does not (see, e.g., his Establishment Clause dissents). It is true that in this political atmosphere, everyone would consider a question about stare decisis to be a code word for Roe v. Wade, but it extends further than that, to topics like Miranda, affirmative action, and so on. Likewise, with Judge Janice Rogers Brown, everyone knows of her speech deriding post-1937 commerce clause jurisprudence, but the more important question is whether she would respect stare decisis in that context.

Reasonable minds can differ about what the correct judicial philosophy is, especially with constitutional questions. Originalism, textualism, precedent, structure, etc. These should be more important in deciding whether the President should nominate someone and the Senate should consent. After all, questions about those areas should help the elected branches figure out how a judge would decide a given case, along with so much more.
7.10.2005 4:28pm
Xrlq (mail) (www):
I don't find this argument particularly convincing. If my favorite Supreme Court Justice, Clarence Thomas, had told the Senate he had thought about <i>Roe</i> and changed his mind later, I don't think people would accuse him of lying, as they rightly do today over the fact he incredibly claimed never to have thought about the issue at all.

The usual excuse I hear for this "ethical" hide-the-ball rule is that merely expressing a view on a subject "prejudges" the issue. I don't buy that for a minute. Actually ruling that Law X means Y does a lot more to commit a judge to that position than merely saying off the cuff "I think X means Y, but that might change if I actually had to rule on X and read all the briefs arguing why it means Z, instead."
7.10.2005 4:36pm
book_lover (mail):
I think all these arguments are missing the point. Surely one can ask a candidate: "What do you think of the legal analysis in Roe v Wade (or even in Griswold). Then let's suppose they say, "not much" for the following reasons (Penumbras ha ha say). Then you can ask them "Well if you don't think much of the legal analysis used, can you come up with a new analysis that might support the conclusion and what if any flaws in your argument do you see. Surely any candidate for the Supreme Court can be asked this kind of question, and if they haven't at least thought about the questions of the argument in Griswold and Roe from a legal analytic point of view, I'm not sure they are qualified for the high court anyway.
7.10.2005 9:07pm
PLM (mail):
As to "book lover's" approach, the easy answer for the Griswold case is to say that either Justice Harlan's or Justice White's concurring opinion was a better analysis. One might be able to tease out of "ordered liberty"--the Harlan approach--some sort of justification for Roe v. Wade, but I haven't really thought this through. But I think it unlikely that Roe could be supported using the White approach (which seemed to me to be based on giving some meaning to "rational" in the "rational basis test") and, of course, White dissented from Roe v. Wade.

But, I like the Volokh approach to the matter the best.
7.10.2005 10:22pm
Steve:
The concern is that there is an asymmetry when a candidate is nominated based upon how they will rule on specific issues, but then questions in the Senate about how they will rule on specific issues are deemed "off-limits."

While Prof. Volokh makes a good point about cries of "perjury!" and the like when a nominee is asked such questions on the record, I assume that even a nominee who chooses to answer such questions head-on can still supply enough caveats to defuse such hypothetical charges.

The bottom line is that while it is fun to discuss the "ground rules" while we await a nominee, the discussion of what is fair or unfair is really meaningless. If Senators oppose a nominee because of one of his answers, it's ultimately up to the people to decide if they think that position is fair or not. I don't think any of us up here in the ivory tower are in a better position to say whether a question is "fair" than the guy on the street.
7.10.2005 10:28pm
Daniel Chapman (mail):
Steve: I think the idealists on this channel would argue that that's exactly why candidates shouldn't be nominated based on how they will rule on specific issues. Rather, they should be nominated because of an overall committment to the rule of law and the original meaning of the Constitution.

Of course... if you don't buy that, it's up to you, but I don't think it's fair to accept it as a given and draw your conclusions from there.
7.11.2005 12:21am
DaveJ (mail):
As one of the posters at Daily Pundit recently put it, there are two questions I would like to see the nominees answer.

What is meant by "congress shall make no law"?

How do you understand the phrase "shall not be infringed"?

All the hypothetical cases will only get you hypothetical answers.
7.11.2005 12:27am
DaveJ (mail):
Scott, do you really think that Thomas's joining an opinion means that he agrees with every word that Scalia wrote, therefore Thomas lied, pardon, flip-flopped?

I wouldn't want to hang my hat on something that flimsy.
7.11.2005 12:31am
Redman (mail):

Would it not be best if the senators simply did NOT ask a nominee how he or she would decide a specific issue? Anyone who is a lawyer knows that a great many facts go into each case, making each one different. The "how would you vote" question exposes the intellectual immaturity of the questioner. But, even if the question is asked, should the nominee simply refuse to answer: "Senator, each case is presented and decided on its own facts, and it would be imprudent for me to sit here today and, without knowing all the facts, speculate on how I would vote." And, remember, that when Thurgood Marshall was nominated for the Court, the hot button issue of the day was the death penalty. As we all know, Marshall was very liberal on that issue, and consistently voted to overturn death penalty convictions, a point of view he most certainly held at the time of his confirmation hearings. However, Marshall refused to answer the "how would you vote on the death penalty" question every time it was asked of him. Maybe some nominee will have the guts to invoke the "Thurgood Marshall Rule" this time around.
7.11.2005 1:21am
Scott Moss (mail) (www):
DaveJ: I think that Scalia's opinion, setting aside its (admirably entertaining) rhetorical flourishes, laid out the standard originalist attack on Lemon. Thomas steadfastly has displayed originalist thinking. So I find it implausible that a committed originalist like Thomas would have had no problem with Lemon until Justice Scalia or some litigant pointed out to him that Lemon was entirely inconsistent with his whole originalist philosophy.

Indeed, it would be quite odd if someone like Thomas who proved to be an across-the-board originalist -- especially in the sense of narrowly construing asserted constitutional rights -- might ever have thought Lemon was a good decision.

In short, under the Thomas jurisprudence we have seen since he joined the Court, Lemon never had a chance with him. The only possible argument in his defense (one I don't believe for a second) is that he wasn't really that familiar with Lemon, because if he read it even cursorily, he would've seen its incompatibility with his philosophy.
7.11.2005 1:30am
Andy Freeman (mail):
Actually, there's another very good reason to refuse to answer many of these questions. That reason? The answers won't affect the votes of the folks asking them.
7.11.2005 1:41am
CharleyCarp (mail):
The only possible argument in his defense (one I don't believe for a second) is that he wasn't really that familiar with Lemon, because if he read it even cursorily, he would've seen its incompatibility with his philosophy.

I suspect that this is precisely the case. The DC Circuit doesn't see a whole lot of Establishment Clause case law, and neither does the EEOC. His answer should not have been anywhere near as unambiguous as it was: he should have said he hadn't really focussed on it.

What I want to hear nominees answer is whether they would have ruled differently had they been on the 11th Circuit for Schiavo v. Schiavo. If the answer is yes, we've maybe got someone with some interesting constitutional theories.
7.11.2005 9:05am
ts (mail):
"One reflection I would make on instances like the Thomas quote on the Lemon test is that (1) the view must look very different from the bench than from the confirmation hearing"

The view certainly looks different between people seeking the truth and people in the grips of an ideology. There's an empirical question as to whether Thomas lied. There's considerable evidence that he did and none that he didn't.
7.11.2005 9:53am
ts (mail):
"I suspect that this is precisely the case."

Really? How odd that you would think that Thomas was both so ignorant as to not be even faintly familiar with Lemon and so dishonest as to not admit that.

"The DC Circuit doesn't see a whole lot of Establishment Clause case law, and neither does the EEOC."

So it's our absence from the DC Circuit and the EEOC that explains *our* familiarity with Lemon?

"His answer should not have been anywhere near as unambiguous as it was: he should have said he hadn't really focussed on it."

That would have been a different lie, and would have embarrassed him, esp. if Lemon were outlined for him and then the same question were asked. Better to just tell the one lie up front.
7.11.2005 10:02am
CharleyCarp (mail):
ts, I should clarify that I believe that Justice Thomas did lie in his confirmation hearings, wrt his personal life, and thought at the time that he showed himself unfit for the federal bench.

That said, I don't know whether he had a Lemon-type case, or whether he was briefed on Lemon before testifying. If either is the case, he either lied by indirection about his constitutional philosophy, or has evolved in his originalist thinking (the choices not being mutually exclusive). I obviously believe him fully capable of lying for a promotion, but don't have evidence on the Lemon case to tip me into believing he did so in that instance.
7.11.2005 11:03am
Justin (mail):
If as many people have argued, the protections of life tenure is based on an aggressive vetting process to choose the judges who will abuse their "nondemocratic" power the least, isn't the most searching inquiry into the way they will rule important? Without a searching inquiry by Congress, life tenure combined with the limited number of people whose votes can be changed by judicial philosophy makes the courts significantly more undemocratic then they would be with the inquiry. Especcially given that perjury is unlikely to be the source of an impeachment unless its brazen and dependant on further deception bad for a transparent political process, what's the harm other than getting stealth candidates on the bench that are actually anathemic to the temperment of the politi?
7.11.2005 11:50am
Adam Scales (mail):
Ugh. How could any candid nominee - of ANY stripe - possibly be confirmed with the sorts of questions some people have in mind? I recall Thomas's statement on Lemon, and as he had spent 10 weeks boning up on Con Law, I imagine he gave a truthful answer. MOST legal tests seem just fine until you actually have to apply them. I mean, who objects to "undue burden" in the abstract - at least as a policy matter.

If I were a nominee, I could honestly state that stare decisis had a certain systemic importance, but did not mean much to me as a moral matter. Most of the cases reflecting a "liberal" view of criminal procedure, civil rights, or anything else involved overturning a bunch of adverse precedent. So what? There are few good reasons to compound an interpretive error by repetition. Perhaps Casey is just such a case, but I wouldn't want any nominee to address such a specific question.

If the Senate were a truly deliberative body, perhaps there is room for the following position for a nominee: "Morally, I think abortion is murder, and it really bothers me that the entire debate has been focused on 'rights' rather than 'responsibility'. Moreover, the Court really got in the way of the political process in Roe, which is why, Senator, you and I are having this pleasant chat THIRTY years after the matter was 'settled.' I think it would have been better to let the States decide. There's a real problem when interest groups rely on courts rather than political processes, and Roe is an example of that.

"And, I'll go further, Mr. Chairman. The kind of "not too hot, not too cold" jurisprudence we've seen compounds the difficulty, because every case is up for grabs. The Court is at the limits of its competence when it acts that way. Moderation isn't necessarily a virtue in laying down guidance to lower courts OR signaling to other branches that they have responsibilities, too.

"Finally - and I can see my time is about to expire here - the framework of Roe has led to a dramatic expansion of judicial authority over other matters traditionally left to the political branches. Lawrence and Goodman may flow inferentially from Roe, but I don't know if those courts have got the politics or the law of those issues right, either. I hope that answers your question."

And, of course, the reason it doesn't answer the question is that all such a candid answer provides is ammunition for contending armies. I basically agree with what I just wrote, and I'd uphold the right to abortion, parental-consent laws, strike down waiting periods, deny a Constitutional right to gay marriage, but probably vote for it as a citizen. I'd also vote to fund abortions for poor people, but only as a citizen. If any of those positions surprise you, you are well on your way to seeing why I find any meaningful questioning of nominees counterproductive.
7.11.2005 12:04pm
Mike Dimino:
I know of no authority that requires Supreme Court Justices to approach each case with an open mind to deciding issues differently than the way one had previously concluded was correct. If such a rule were in place, I suspect that every Justice would have violated his judicial oath. Does anyone think that Justices Scalia and Ginsburg rethink their views (even granting that such rethinking would make one reaffirm his prior position) on whether the Constitution contains an abortion right?

Even if there is such a requirement, however, Senators who decline to ask detailed questions may at best make Justices more free to reexamine questions at the cost of denying the public the knowledge of the nominees' likely approach to those questions. Because nominees far more often adhere to prior views than discard them, I would think the danger to the public of not asking questions is greater than the danger of asking them. It is a significant cost to the public to confirm a nominee whose views are unknown and abhorrent, and one I weigh as less significant than the interest in not subjecting judges to charges of perjury. (As suggested earlier in the comments, perjury charges are as likely to come from a nominee's evasive "answers" to questions -- e.g., Justice Thomas and Roe -- as from his reversals once on the bench.)

The reason nominees decline to answer is not out of a desire to keep options open (if it were, then an equivocal answer could be given); it is out of a desire to be confirmed. Discussions of the death penalty, abortion, etc., must be avoided because they inspire opposition to confirmation; honest discussions of legal philosophy (even as applied to specific cases) do not impair a judge's ability to hear and decide cases.
7.11.2005 12:29pm
Wince and Nod (mail) (www):
I have a question I'd ask: Do you use the original meaning of the Constitution as your guide in interpreting it, and will you overturn improperly decided precendents?

Only acceptable answer: Yes to both parts.

Follow up question: Please state some examples of improperly decided precendents, briefly explaining why they failed to follow original meaning.

A good candidate will mention Raich and Kelo, among others.

Yours,
Wince
7.11.2005 4:44pm