Ask not: our crazy rules for judicial nominees

National Review, August 8, 2005 by Ramesh Ponnuru

THE Senate faces a momentous decision in deciding whether to confirm John Roberts as Justice Sandra Day O'Connor's successor on the Supreme Court. Roberts would have great power to determine whether the death penalty will be curtailed or expanded, how the war on terrorism will be fought, which regulations of abortion will be allowed, whether same-sex marriage will be the law of the land, and what types of affirmative action governments may practice. He may not be able to set local traffic laws or to wage wars. But he will do more to determine how Americans are governed than any senator, or any five senators.

Yet it would apparently be wrong for senators to ask him how he would exercise this vast power. In our current political order, elections for the Senate may turn on the candidates' positions on abortion even though senators do not set abortion policy. But the people who do set abortion policy are not to be asked how they will rule. It is permissible to interview a candidate for the job of Supreme Court justice. But the hirers are not to ask for the answers they most want to know.

That position, however absurd it may sound, has been embraced by the Republican party. Even before Bush named a nominee, most Republicans in Washington were saying that questions about how the nominee would rule on specific issues are off limits. They say that questions about professional qualifications are proper. Questions about "judicial philosophy" may also be proper, some Republicans will allow. But even they draw the line at asking the nominee about the implications of his judicial philosophy.

Republicans have adopted this principle for reasons of both high principle and low politics. The high principle is that if nominees must answer specific questions, it will compromise their independence. The political calculation is that it will compromise their confirmability.

If the goal is to get Roberts, or any future Bush nominee, confirmed, then a rule that allows only extremely general questions is obviously useful. The more answers Roberts gives, the more reasons or pretexts senators will have to oppose him. Ideally, then, questions would be restricted to: "Is it true, sir, that you went to the best schools, have had a distinguished legal career, and are universally attested to be an honorable and brilliant man? Please do not hold back." If "judicial philosophy" comes up, it would be in this form: "Do you believe that judges should interpret the law or make it up as they go along?" Roberts would choose the former answer; so would any other nominee.

The Republicans especially want Roberts to be able to avoid answering questions about Roe v. Wade. Opinion polls show that most Americans favor Roe (especially if the pollster describes it, misleadingly, as legalizing abortion only in the first trimester). At least 50 senators support Roe, too, including a few whose votes Roberts would need to get confirmed.

POLITICAL SEDUCTION

The principled argument for silence is that a justice has to be free to rule on the merits of the case before him, and not be constrained by commitments made to senators in order to get confirmed. So it would be inappropriate for Roberts to say how he would vote in a pending case--say, the case involving Oregon's assisted-suicide law, which is on the Supreme Court's docket in the next term. No one disputes that. The question, however, is whether an informal prohibition on expressing an opinion on particular cases should be extended to cover the general issues at stake in those cases. Should Roberts be expected to say, if asked, whether he believes the Constitution protects a right to assisted suicide?

It is certainly possible that allowing such questions, and expecting nominees to give answers to them, would 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. (There are, presumably, some cases that pro-lifers deserve to lose and some racial preferences that ought to be struck down, and a conscientious judge ought to make a good-faith effort to draw the right distinctions.)

After the Senate rejected his nomination to the Supreme Court in 1987, Robert Bork wrote a book called The Tempting of America: The Political Seduction of the Law. Bork argues, as Justice Antonin Scalia also does in A Matter of Interpretation and in several of his most high-profile dissents, against the "politicization of the law." When judges get in the business of pursuing political agendas, political activists will naturally start to apply political pressure to them. They will march on the Supreme Court instead of Congress. Presidential candidates will run, more than they did before, as chief judge-pickers. Senators will demand that judicial nominees pass various litmus tests. Bork, Scalia, and many others see all of these phenomena as improper and unfortunate. At their endpoint, according to Scalia, the courts will become a servant of legislative majorities rather than a check on them.