Should SCOTUS nominees answer all questions put to them?

In the last few days I’ve been hearing and reading about norms for what questions a SCOTUS nominee should answer. Apparently Sen. Schumer thinks they should answer pretty much everything thrown at them. OTOH, Judge Ginsberg refused to answer many questions, and was easily confirmed.

I’m inclined to agree with Schumer on this one. More information leads to better decisions.

What’s the other point of view on this question?

FWIW I’m libertarian/conservative and generally supportive of Roberts as a nominee, from what I’ve read about him.

I agree that nominees should be compelled to answer questions about their judicial philosophy and that it is grounds to vote against a candidate who fails to forthrightly answer the question. The stock answer “I don’t want to prejudice any case that might come up” is just a dodge. Stealth candidates do not encourage respect for the Court. Nominees should say what they mean and mean what they say. Being clean-cut, handsome and having gone to Harvard doesn’t mean that the candidate gets a pass and people are not entitled to know what the nominee thinks about important legal issues.

If it is grounds to vote against a nominee who dodges in this way, why was Ginsburg confirmed by a vote of 96-3?

I said dodging questions should be grounds for voting against a nominee and not that that is the standard that the Senate used in the Ginsberg vote. Since Bork dodging controversial policy/philosophy questions has been the practice of every nominee. I’m saying that we shouldn’t accept that as a practice.

The Senate is entitled to full candor from a nominee unless such candor could be construed as prejudging a particular case (as Scalia did over a year ago with his dumb public comments on the Pledge of Allegiance case). Nominees should forthrightly answer any question posed to them by the Senate about their legal and judicial philosophies. Such questions may appropriately include questions about the nominee’s views of past decisions, but should not include any questions about specific cases (and I mean specific, as in actual lawsuits or pending issues) that may appear for decision before the Court.

Don’t be too supportive of Schumer here. Democrats (yes, Republicans have and will do this, too) are trying to find out how they can shoot our proposed Justice down. They will try to bring up inane questions and unfair ones. Certainly, I don’t think the canidates private business or reltionaships are important and should not be morally answered. While canidate should answer questions about his thoughts of judicial philosophy, questions directed in this manner should not be directed with the sole thought of getting a Liberal or Conservative response, and deciding on that basis. The full range of though must be considered.

If a nominee has private business or relationships that raise ethical concerns, then that absolutely becomes a fair avenue for questioning in the nomination process.

The sad case of Abe Fortas is instructive here.

They can’t comment on potential future cases because it would compromise the case. It would be nice if the sitting SC judges would sit in on the (cough) interview process and simply throw out anything that would be in conflict with the job. That would take a lot of the circus out of the proceedings.

Nonsense. Unless and until an actual (or damn near actual) case or controversy arises, such comments would only be hypothetical in nature. Judicial ethics are not implicated by hypothetical conflicts or the appearance of hypothetical partiality.

Forgot to add: The reason a statement on a hypothetical case does not implicate a judge’s impartiality in a future actual case is that the judge is tasked with applying the law to the facts of the individual case. Thus, Justice Scalia is permitted to continue participating in abortion cases, even though everyone knows from his past opinions that his vote will always end up in favor of the fetus.

I heard something on the radio today that seemed to suggest that if a nominee answers some types of questions it would be a violation of legal ethics. Can anyone explain?

Yes. It is a violation of judicial ethics to comment on a pending case or impending case in a way that calls into question the judge’s ability to impartially judge the facts and the law of the case. See, e.g., Rule 2.11 of the ABA’s current draft of the Model Code of Judicial Conduct:


A. A judge shall not make any comment that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.

B. The judge shall require similar abstention on the part of staff, court officers, and others subject to the judge’s direction and control.

C. A judge shall not, with respect to cases, controversies or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of judicial office.


[1] Rule 2.11 restrictions on judicial speech are essential to the maintenance of the integrity, impartiality, and independence of the judiciary.

[2] A pending matter is any one that has commenced; a matter remains pending and continues through any appellate process until final disposition. An impending proceeding is one that is anticipated but not yet commenced. A matter is impending when there is reason to believe a case may be filed, for example, when a crime is being investigated but no charges have been brought, or when someone has been arrested but not yet charged.

[3] This Rule does not prohibit a judge from commenting on proceedings in which the judge is a litigant in a personal capacity. In cases such as a writ of mandamus, however, in which the judge is a litigant in an official capacity, the judge must not comment publicly.

[4] Provided that the judge complies with the requirements of 2.11A and B this Rule does not prohibit judges from making public statements in the course of their official duties, from explaining the procedures of the court to the public,35 or from responding directly, or through a third party to allegations in the media or elsewhere concerning the judge’s conduct in a matter.

[5] Subject to the provisions of this Rule, candidates for judicial office may respond to unjust criticism. See Rule 5.01, Comment [12].

Based on what you just posted it would be inappropriate for a judge to inject opinion on potential future cases. It’s nonsense to think that the questions posed to them are anything BUT how they would vote on specific topics.

No, it isn’t. A nominee commenting on abortion or eminent domain generally is not promising to rule a certain way in a future case concerning those issues.

Correct. Commenting on a principle of law in the abstract does not call into question a judge’s impartiality as to a specific case. A judge could opine that Roe and Casey are “the settled law of the land” and still vote to eliminate abortion rights. Of course, that would pretty much demonstrate he’s a lying s.o.b. (much like Thomas when he testified he’d never thought about abortion before), but he could do it without violating judicial ethics.

Good point. This shouldn’t be used as an excuse for a Congressional fishing expedition, however.

If Roe vs Wade is “the law of the land” then abortion rights can’t be reversed. If you’re saying they can be reversed then it is likely someone will bring it before the court, making it an impending case.

One reason was that she was suggested to President Clinton by Orren Hatch who headed up the judicial committee, as part of the Senate’s advisory function. Clinton had not heard of her before then, but agreed that she would be a good candidate. Having Hatch’s approval made the process pretty easy.

Also, while I’m not sure what questions Ginsburg refused to answer, she had a long history as a legal scholar and an appellate court judge (in DC) with plenty of writings that, as I understand it, provided a good idea of her views before she sat before the committe for review.

Roberts, on the other hand is not as well known, with only two years as judge. Though he is an exellent lawyer, he argued on behalf of his clients which does not provide a clear picture of his personal views. Thus the Democrats feel that there is much ground to be gone over as he does not have nearly as much background on record as Ginsburg had.