Dispatches from the Creation Wars

Vikram Amar has an excellent essay on Findlaw debunking this notion that you can’t ask judicial nominees about specific cases. He points out that confirmation hearings should dig much deeper than the usual judicial cliches about “legislating from the bench” and “judicial restraint” because those phrases really don’t tell us anything meaningful about how a justice will do his job:

The problem with the metaphor of judicial legislation is, of course, that no one knows (or at least agrees on) what it means. So too with “judicial activism,” “strict construction” and the like. For instance, Justice Scalia is famously a “textualist,” and yet has (openly) ignored the plain text of the Eleventh Amendment in deciding cases about states’ rights. That makes him a rather more complicated textualist than might originally be supposed.

The only – I repeat, only – way to understand a Supreme Court nominee’s approach to deciding big cases is to dig beneath general labels and look at past specific big cases themselves, to see what the nominee says in or about these actual legal disputes. When I give a constitutional law exam, if I allowed students to answer a question without requiring them to comment on specific cases, what the cases mean, whether the cases were correctly decided, and why or why not, I would have no basis on which to issue grades.

It seems that John G. Roberts lacks a lengthy and unambiguous “paper trail” marking out his own views. That means that if the country is to have any meaningful sense of the direction(s) in which a “Justice” Roberts might move the nation’s jurisprudence – and that, after all (rather than his credentials or his religion), is the overriding question – then he has to tell us what he thinks about specific important legal controversies of our day.

And yet this may not easily happen, because over the years many Senators – even diligent Senators – reflexively and unwisely seem to have conceded that while it is appropriate to ask a nominee about his general approach to judging and interpretation, it is not permissible to ask for detailed views about actual cases. This is nonsense. If it’s not right to ask a nominee for specific views about specific cases, there is little point in even having a hearing.

I agree with him completely and said the same thing a couple weeks ago on this blog. The argument on the other side is that if you ask a nominee specific questions about past cases, they’ll be prejudiced (in the literal sense of having prejudged) the case should it come before the court again, which happens fairly regularly. Some have even suggested that a justice would have to recuse himself if he took a specific position on a case and then had to hear a case on the same issue. But the obvious absurdity of this argument lies in the fact that the sitting justices who ruled in the prior case have already prejudged the case as well, when they heard it the first time. Also in the fact that sitting justices write law review articles and give speeches all the time that examine and critique past court decisions. No one argues that this is a problem for them. Moreover, everyone accepts that a judge may answer detailed questions about his own past rulings, but the issues those rulings involved are no less likely to come before him on the Supreme Court than rulings issued by other judges, so clearly those who say such questions can’t be asked are not applying their logic consistently. And if expressing an opinion on a prior case means one has prejudged it if it comes up again, wouldn’t simply having an opinion on a prior case do the same thing? Judges are not blank slates to be written upon. Of course they bring their opinions on prior cases to bear on present cases. If they didn’t, they have no business being on the court. Amar also makes an important distinction between promise and prediction:

So it cannot be that answering questions and rendering views about past cases is inherently problematic. But the form that the questions and answers take should be carefully chosen so as to avoid any suggestion that the Senate is seeking, or the nominee is giving in order to get confirmed, promises of how he will rule in the future.

Explicit or implicit promises about future rulings are out of bounds – such promises if sought and given would indeed compromise judicial independence and due process of law. Our Constitution sets up three independent branches; the judiciary is not supposed to be the puppet of the Congress or the President.

But a nominee’s disclosure of specific views about actual past cases does not commit him to rule any particular way in the future. He remains free to change his mind if persuaded by sound legal arguments in later cases. Just as then-Justice Rehnquist in his confirmation hearings for Chief Justice in 1986 could have properly – without making any impermissible promises — told Senators that particular of his own prior Supreme Court writings as Associate Justice accurately reflected his constitutional vision (and no one could really doubt that this would have been proper), so Roberts can explain to Senators that he agrees — or disagrees — with particular opinions of Rehnquist or others.

I don’t think they should ask a nominee about specific cases that are actually pending before the court because the nominee has almost certainly not read the briefs in the case or had a chance to examine the issue in any detail, and the details often determine the outcome. But when asked about a past decision by the court, the details are available in the decision itself and the briefs may be made available easily and quickly. You can’t know what types of arguments a future case might present, but you do know the arguments presented in past cases so there is no reason to allow a nominee to beg off on answering such a question.

In the end, Amar leaves as an open question which particular cases a nominee should be asked about. In fact, he leaves it as a challenge to his readers:

Here’s my thought: Let’s all spend August identifying ten or so closely divided (5-4 or 6-3) Supreme Court decisions from the past decade covering a range of important constitutional and statutory areas, and let’s ask Judge Roberts to do what lawyers all across the country do every summer after big cases come down – read the majority opinions, concurrences and dissents, and say who got the better of the legal debate in each of the cases.

I would say let’s not limit that to the last 10 years, let’s take big decisions from history as well. Which cases would you like to have a nominee break down and analyze so that you can get a real sense of their judicial philosophy and how they go about the job of judging? Perhaps some of the lawyers in the crowd will throw out some suggestions.

Comments

  1. #1 Ed Darrell
    August 5, 2005

    I keep hoping some judge or nominee will suggest that Barron v. Baltimore was too broadly construed, or incorrectly decided, or both. It’s rather moot now, since the Civil War and the 14th Amendment changed it. So why not confess?

  2. #2 Sherman Dorn
    August 5, 2005

    Meyer v. Nebraska and Pierce v. Society of Sisters, which are the historical roots of Griswold.

  3. #3 Dan
    August 5, 2005

    The Slaughterhouse Cases, Carolene Products (with particular attention paid, of course, to FN 4), Wickard, and Casey are the ones that come quickly to mind. Though there are LOTS of others that deserve to make the list, too. We could have a lot of fun with this game.

  4. #4 Ed Brayton
    August 5, 2005

    I totally agree about the Slaughterhouse cases, especially because one’s analysis of those cases tells you so much about so many different aspects of judicial philosophy – the type of originalism they might apply, their respect or lack of respect for stare decisis, the distinction between following the logic of the text rather than the prejudices or compromises of those who wrote it, and much more. Wickard would tell you a lot about how much they are willing to abstract the limitations on governmental authority. I’d add Midkiff for the same reason. But probably the biggest two I’d like to hear their reaction to are Griswold and Lawrence.