The Volokh Conspiracy

In . . . this Article we propose and defend a method of questioning that will enable the Senate to evaluate the constitutional commitments of nominees while preserving the independent integrity of the law. We argue, in brief, that senators can with confidence and authority ask nominees to explain the grounds on which they would have voted in past decisions of the Supreme Court. Such questions serve the democratic design of the confirmation process by revealing the operational content of nominees’ constitutional commitments. Asking nominees to disclose how they would have decided well-known Supreme Court cases prevents nominees from explaining their constitutional commitments in terms of abstract principles like “liberty” or “equality,” whose practical significance in particular cases and contested areas of constitutional law is unknown. The goal would be to sustain a colloquy capable of adequately informing a senatorial vote on whether to invest a nominee with the independent authority to interpret the Constitution.

A commitment to respect the Constitution is a matter of judicial character or virtue that goes beyond the credentials that measure pure ability. If senators are to assess judicial attitude as well as ability, then they must, as Post and Siegel correctly observe, “acquire [the] useful information about a nominee’s constitutional commitments” that is needed to make such an assessment. Hence, in an example of what Cass Sunstein has called an “incompletely theorized agreement,” we three agree, albeit for different underlying reasons, that the Senate ought “to evaluate the constitutional commitments of nominees, while preserving the independent integrity of the law.”

First, an inquiry into cases would risk turning hearings into a trial by ordeal or, if that metaphor seems exaggerated, then an oral examination. Unless there was a very limited set of canonical cases agreed upon in advance, it would leave candidates open for ambushes that expose their understandable lack of knowledge about any number of cases. While each senator need only ask about just one or two cases, the candidate would have to take all comers or look evasive or uninformed. I doubt whether many constitutional law professors would be able to pass this sort of oral exam, but I am certain that even a very able nominee would likely be unfairly tripped up by such a process.

Second, if we are to maintain our incompletely theorized agreement that such inquiries are proper, whatever method is adopted to ferret out constitutional philosophy should not favor any particular philosophy. Asking about a set of canonical cases is biased towards a “result-oriented jurisprudence” advocated by some, but rejected by others and perhaps even by most. Why? Because a catechism that singles out particular beloved or despised cases would effectively require candidates to pledge their fealty to the results of the approved cases and their abhorrence of the despised ones. Even grounding the “right result” on alternative grounds—the favorite pastime of con law professors—could easily be characterized unfairly as a lack of proper enthusiasm for the approved results, as was alleged about Robert Bork. Regardless of the proffered justification, such a “test” would rest largely, if not entirely, on reaching the results deemed correct, thereby effectively requiring a “just so” constitutional philosophy that somehow manages to reach all the right results.

This suggests a third problem. Such an inquiry privileges the status quo. It takes as normatively given what Jack Balkin has called “the canon” and “anti-canon.” But what makes “the canon” at any particular period a canon is solely prevailing attitudes for or against some cases.

Because it is a constitution they are expounding—I have always wanted to say that—not a set of canonical results. If applied faithfully in the past, their procedure would likely have screened any nominee who questioned the Supreme Court’s extant interpretation of the Fugitive Slave Clause in Prigg v. Pennsylvania or its constitutional acceptance of Jim Crow in Plessy v. Ferguson. If you don’t like these examples, just think of any well-established precedent we now think was wrongly decided. At one time it was canonical.

Consider the Second Amendment. Does a nominee rely on its original meaning (and aware of controversies about its meaning) or does the nominee think its meaning evolves or has been superseded by modern developments? Is its meaning one of general principle or is it historically limited to particular practices in effect at the time of its enactment? Does the existence of an individual to right to keep and bear arms preclude all reasonable regulations? Does it apply to the states? Why or why not? Answers to these questions are likely to cohere with how a nominee evaluates other clauses. . . . Even if asking about clauses will not always get Post and Siegel all they want to know about a candidate’s constitutional philosophy, it would get what they need.