The hearings on the nomination of John Roberts as Chief Justice began at noon today. I've watched a few of the opening statements from the judiciary committee members and found much to laugh at. I'm hoping the full text of those remarks will be available in the next couple days so I can go over them in more detail. Senator Kyl of Arizona tried his best to make the argument that Roberts should not answer any questions about any cases or potential controversies that he might hear later on the court, but that is an absurd position.
Kyl argued that it is unfair for a lawyer to come before the court knowing how a judge is going to rule. But we don't prevent sitting justices from discussing legal controversies, and they do so all the time. No one is going to ask the nominee specifically how he will rule, and no nominee could offer such a pledge; the specifics of a case are too important. But you certainly can ask a nominee his general views on a subject, his opinion of past cases, and so forth. No judge comes to any case completely tabula rasa, nor would it be a good thing if they did. I'm sure there'll be much more said on this in the next few days.
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If by some strange spiral of circumstances, the Democratic party were to retake seats in the House and Senate and initiate impeachment proceedings would Roberts recuse himself from the trial???? Is there a precedent for this among Johnson, Nixon(would Burger have stepped aside?), and Clinton.
Surely it's only unfair if one side's lawyer knows the judge's opinion and the other doesn't. This raises two points: 1) any constitutional lawyer who can't even be bothered to listen to a Supreme Court justice's confirmation hearing should be disbarred; 2) the best way to guarantee that only some lawyers (ie his/her friends and former colleagues) know a justice's opinion on a subject is by refusing to let people ask said justice questions in public.