TCS Daily


Devolution of Advice and Consent

By Bayard Friedman - August 22, 2005 12:00 AM

After striding to the podium and humbly accepting his nomination to the Supreme Court, Judge John Roberts returned home with a keen appreciation of the Senate Judiciary Committee's confirmation process that awaits him. Some twenty-four years earlier, he assisted Justice Sandra Day O'Connor in her own confirmation hearing before the Senate advising her not to answer case-specific or hypothetical questions. Ultimately, Justice O'Connor brought a sheet of paper to her confirmation hearings, and when interrogated about her judicial philosophy, she looked down and read it. "I do not believe as a nominee I could tell you how I would vote."

Everyone seemed satisfied. Justice O'Connor was unanimously confirmed to the court. When word spread on July 1st of her resignation, sentimental sounding senators from both parties appeared to gather around the campfire and sing her praises. Senator Patrick Leahy labeled her a "darn good justice" while Senator Harry Reid commended her for being "a voice of reason."

Lately though, some members of the Senate Judiciary Committee have sounded, at best, reticent and, at worst, hostile to permitting Justice Roberts the traditional right to refuse answering questions which could foreshadow how he would approach a particular case. Senator Chuck Schumer has rallied his cohorts to demand that the nominee declare whether or not he agrees with the Court's reasoning on a host of particular cases from Bush v. Gore (2000 Florida election controversy) to Buckley v. Valeo (Campaign Finance spending limits). Furthermore, he continues to insist that Justice Roberts "identify three cases that have not been reversed" of which he is critical. Meanwhile, Senators Ted Kennedy and Leahy have taken a more subtle approach by vowing to "carefully question" the nominee on his "approach to specific issues" of great concern.

An historical examination highlights the convenient changes in these liberals' tactics of questioning judges. As a younger senator in 1967, Kennedy confidently decreed that senators should solely investigate "background, experience, qualifications, and temperament" in evaluating Justice Marshall's nomination to the high court. Senator Kennedy was not the slightest bit uneasy about Marshall's well pronounced and very liberal ideology. And fourteen years later, upon Justice O'Connor's nomination he reiterated his sentiments declaring it, "Offensive to suggest that a potential justice of the Supreme Court must pass some presumed test of judicial philosophy."

Examinations of more recent confirmation hearings yield similar findings. In 1994, President Clinton nominated Ruth Bader Ginsburg to the Supreme Court. As a former ACLU counsel who had suggested the Constitution may contain a fundamental right to polygamy, one could reasonably question her philosophical approach to the law. As senators quizzed her, she vowed to give, "no hints, no forecasts, no previews" of her judicial philosophy. She refused to answer questions outside her area of expertise or based on hypothetical situations declaring she would not "make general statements apart from a concrete case" with briefs and a full record. When questioned on the issues of property rights and eminent domain, she classified the law as "still evolving" and refused to comment further. In light of the recent case Kelo v. New London, which vastly enlarged government's power to claim eminent domain, it appears Justice Ginsburg believed that the laws had "to evolve" quite a bit. When declining to answer Senator Leahy's questions on the often competing Free Exercise and Establishment Clauses, he took it in stride: "I understand. Just trying, Judge. Just trying." She was confirmed by a vote of 93-3.

In fact, every sitting justice has refused to answer some questions on constitutional issues or past cases. Justice John Paul Stevens wrote in 2002 that, "A candidate for judicial office who goes beyond the expression of 'general observations about the law'...demonstrates either a lack of impartiality or a lack of understanding of the importance of maintaining public confidence in the impartiality of the judiciary."

Ethical codes have long forbidden judges from predetermining cases or expressing far-reaching opinions on legal matters. The American Bar Association Model Code of Judicial Conduct Cannon 5A deems it entirely inappropriate to comment "with respect to cases, controversies, or issues that are likely to come before the court." Senator Schumer's insistence on a deep and case specific investigation of John Roberts' record would break with historical precedent, undermine the impartiality of the judiciary, and damage the separation of powers intended by the writers of the Constitution.

Recently Senator Kennedy demanded that his colleagues avoid "an Alice in Wonderland scenario" of presuming Roberts' qualification before Judiciary Committee hearings. The Senator must have missed the looking glass and fallen down the rabbit hole! In 1987, within an hour of President Reagan's nomination of Robert Bork to the Supreme Court, Senator Kennedy took to the floor and assailed the nominee as an extremist utterly unfit for the job. He did not need to wait for the nominee to testify before a committee. Furthermore, his recent statements put him in conflict with his colleague Senator Joe Biden who, at Justice Ginsburg's hearing, launched into a long dissertation on the history of Judicial Committee hearings only to note that they are merely a "part" of the overarching confirmation process.

Since 1955, when Senate Judiciary members began regularly questioning nominated justices, their role of offering "advice and consent" has been devolving into a responsibility to "attack and cajole" judicial nominees. Perhaps Senator Biden should counsel his colleagues to follow the precedent he helped set in 1994 by advising Justice Ginsberg to "not answer a question of what your view will be on an issue that clearly is going to come before the Court in 50 different forms...over your tenure on the Court." Over time, we will all benefit from an independent and judicious judiciary.

The author is a writer living in Dallas.

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