JURIST Contributing Editor William G. Ross, Professor of Law at Samford University's Cumberland School of Law in Alabama, says that in his upcoming Senate confirmation hearing US Supreme Court nominee John G. Roberts Jr. may not reveal how he'll decide particular legal questions, but that doesn't mean that the questioning process itself won't be interesting and useful...
Fearful that Roberts, despite his gentle demeanor, is a right-wing ideologue who would vote to overturn a wide range of civil liberties decisions, various senators have vowed to ask Roberts very pointed questions designed to try to pin down his position on highly controversial subjects. Such questions are appropriate insofar as senators need to know as much as possible about the views of nominees in order to decide how to vote on their confirmation. In particular, Senator Charles Schumer of New York has announced that he will ask Roberts whether Roe v. Wade was correctly decided, whether he agrees with the reasoning in Bush v. Gore, and whether he believes that either Congress or the states can regulate the sexual behavior of individuals within the privacy of their home. Although Schumer is perfectly within his rights in asking these questions, it would be improper for Roberts to answer these and other questions that solicit his opinion regarding specific issues which are likely to come before the Court.
Any judicial nominee who offered opinions on such questions would diminish confidence in the Supreme Court by suggesting that his mind was closed. As the Senate's Republican Policy Committee warned in a statement last month, "no judicial nominee should be compelled to answer any question that would force him or her to prejudge or signal future conclusions regarding any case or issue." A nominee who speaks too freely about an issue that may come before the Court also may later need to need to recuse herself under a federal statute which requires recusal when a judge's "impartiality might reasonably be questioned."
Moreover, a nominee who is too voluble in her response to a question risks violation of Canon 5A(3)(d)(ii) of the ABA Model Code of Judicial Conduct, which states that a candidate for appointment to judicial office "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 the office." Although mere expression of an opinion may not be intended as a pledge, promise, or commitment, it could be interpreted as such.
Nominees have therefore regularly refused to speculate about how they would have ruled in previous cases or how they would vote in cases that might come before the Court. Although Stephen Breyer assured senators during his confirmation hearings in 1994 that he would "try very hard to give you an impression, an understanding of how I think about legal problems of all different kinds," he explained that he did not "want to predict or commit" himself "on an open issue" that was likely "to come up in the Court." Breyer explained that a judge who has thoroughly studied an issue might reach a conclusion that differs from his casual opinion, and also that "it is so important" that "clients and lawyers understand the judges are really open-minded." Breyer explained that such comment would be inappropriate in the absence of "thorough briefing and thorough thought" and could create the appearance of bias. Similarly, O'Connor declared at her 1981 confirmation hearings that "neither you nor I know today the precise way in which any issue will present itself in the future, or what the facts or arguments may be at that time...Until those crucial factors become known, I suggest that none of us really know how we would resolve any particular issue."
Nominees such as Roberts who already have served as judges also should refrain from engaging in detailed explanations of their judicial decisions. A judge's opinion should speak for itself, and a nominee can only sow confusion and detract from the opinion's integrity by offering commentary on it. A judge's public explanation of his judicial opinion is tantamount to a re-writing of it. Insofar as the decisions of a lower federal judge often involve issues that are likely to come before the Supreme Court in one form or another, discussion of specific opinions also can encourage comments about legal issues that would create the appearance of bias. Some Democratic senators have announced that they intend to query Roberts in detail about his judicial decisions since his service as a Court of Appeals judge only for two years does not provide a long-term judicial record that would bring his judicial views into a clearer focus. Roberts should not shrink from refusing to answer any question that requires more than a re-statement of his judicial opinion or a few very general remarks about it.
Since senators naturally want to probe the thinking of nominees in order to elicit clues about how they would rule in actual cases, Senate confirmation hearings often have the flavor of a cat and mouse game. Senators try to cajole or even trick nominees into revealing their opinions about substantive legal issues, while nominees offer replies that sound sage and erudite but which often are platitudinous and provide little real insight into how they might rule on specific issues. Nominees assure senators that they revere judicial restraint, separation of church and state, Brown v. Board of Education, fairness to criminal defendants, and gender equality. And they stand foursquare against slavery. As Ruth Bader Ginsburg asserted during her confirmation hearings, Dred Scott was "a wrong decision."
Senators and the public therefore should not expect too much from the questioning process. As Senator Arlen Specter observed during the Ginsburg hearings, "nominees answer about as many questions as they have to for confirmation."Attempts to probe the views of a nominee on specific issues also is futile to the extent that the nominee's general views already are known. It is quite clear by now, for example, that Roberts's views on many political issues probably are inconsistent with those of many Democratic senators. Although questioning may help to reveal whether his views are so different that senators wish to oppose his nomination, there is no way to predict whether the nominee will change those views once he is a member of the Court, and there likewise is no way to determine the extent to which those views will affect his adjudication of specific cases.
The questioning of nominees nevertheless can serve a number of useful purposes.
Various nominees have offered thoughtful comments about a wide range of legal issues without creating any appearance of bias with respect to particular issues. For example, a report of the Senate Judiciary Committee in 1993 praised Ginsburg for providing useful insights into her thoughts concerning the Supreme Court's role in the political process, the scope of unenumerated rights, abortion, gender discrimination, affirmative action, freedom of speech and religion, separation of powers, statutory interpretation, standing, and criminal law and procedure, even though the committee acknowledged that it was not "fully satisfied with the responsiveness of Judge Ginsburg's answers."
In a nice example of how a nominee can provide substantive insights into her thinking without committing herself to particular position, Ginsburg testified that she believed that the government must accommodate specific religious practices in the absence of "specific circumstances," a view that the Judiciary Committee's report pointed out was in direct conflict with the Court's recent decision in Employment Division v. Smith. Although Ginsburg refrained from direct criticism of Smith and her remarks did not demonstrate how she would vote in any actual case involving re-consideration of Smith, the Judiciary Committee pointed out that "Ginsburg's approach, reflected in her testimony and in her judicial record, shows sensitivity to the problem at the core of Smith and of modern free exercise clause doctrine the problem of adjusting government action on religious practice to a pluralistic society."
The sophisticated questions about judicial activism and federalism that Senator Specter has announced that he will ask Roberts similarly promise to generate a fascinating dialogue on these two critical subjects. Even though Roberts should avoid comments, including remarks about specific cases, that would tend to reveal how he would decide actual issues, there is much that Roberts could say that would offer insights into his thinking.
It also is appropriate for nominees to answer questions about their non-judicial publications and statements, but only to the extent that such comments do not tend to reveal their opinion about issues that are likely to come before the Court. In many instances, of course, this exception may swallow the rule. These types of questions are likely to create tension during the hearings on Roberts's nomination since Roberts wrote many controversial memoranda during his service as an assistant to the attorney general, a member of the White House counsel's staff, and deputy solicitor general. Roberts should try to answer these questions as fully as possible, particularly if the Administration continues to balk at the release of substantial number of documents relating to Roberts's tenure in the solicitor general's office.
Nominees also may appropriately answer questions concerning their opinions on political or public policy questions, unless they fear that such responses would create an appearance of bias in actual cases . For example, Ginsburg re-affirmed her support for adoption of the Equal Rights Amendment. Similarly, O'Connor expressed her personal repugnance toward abortion and explained that she had did not regret that she had voted in favor of capital punishment as a member of the Arizona legislature. Such comments naturally offer clues about how a nominee might approach issues from the bench since a judge's political views often affect the manner in which a judge decides issues of law, but they need not necessarily create an appearance of bias since a judge presumably ought to be able to draw a distinction between her personal public policy choices and her views on legal questions.
The questioning process also can help to probe a nominee's legal acumen and mental nimbleness, although these qualities rarely are in doubt since most nominees, including Roberts, obviously have the intellectual ability to serve on the Court. The testimony of nominees can, however, help to confirm existing impressions about a nominee's fitness for office. Such confirmation is particularly useful in helping to bolster public confidence in the Court among the millions of Americans who watch the televised confirmation hearings.
Similarly, the questioning process can be useful if there are issues concerning a nominee's previous actions, particularly those that call into question his character. The prime example is the hearing on Clarence Thomas's nomination in 1991, when Thomas was questioned extensively about alleged sexual harassment. A more common example has been questioning about possible conflicts of interest. Since Roberts appears free from any taint of scandal, questions about his personal or professional conduct are not likely to be prominent during the hearings on his nomination.
The testimony of judicial nominees also provides a unique opportunity for direct dialogue between the legislative and judicial branches of the federal government. Nominees often make observations that help to inform senators about the judicial process, while senators are able to communicate their thoughts and concerns about judicial issues. O'Connor, for example, told the senators that her experience as a trial judge had convinced her that Miranda had not encouraged crime or impeded the ability of police to gather evidence. Senators, in turn, have routinely admonished nominees to exercise judicial restraint and to remain mindful of the practical effects of their decisions. The advice that senators often give to prospective judges at these hearings adds a new layer of meaning to the constitutional duty of the Senate to offer "advice and consent" in connection with judicial nominations. During the past twenty years, the televising of the hearings has provided marvelous national seminars on constitutional law. Watched by millions of Americans, the hearings have gone far in helping to promote understanding of constitutional issues and the Court's work.
The questioning of nominees also can provide insights into their character and clues to how they would approach cases. For example, David Souter helped to assuage the anxiety of pro-choice advocates by reveling during his confirmation hearing that he once served as a confidant to a young woman who was considering having an abortion. Although this offered no specific insights into how Souter would vote in abortion cases, it indicated that this middle-aged bachelor was not oblivious to the personal trauma of women who have unwanted pregnancies. Conversely, Robert Bork helped to crystallize the misgivings of his critics when, in response to a question about why he wanted to become a Justice, he explained that service on the Court would offer "an intellectual feast." This reinforced the widespread perception of Bork as a cold intellectual who regarded the law more as an academic game than as an instrument of justice.
The hearings and the committee's written questions also may help to clarify issues concerning the nominee's background and offer insights into the nomination process. For example, the Judiciary Committee's written questionnaire asks all federal judiciary nominees whether anyone, including persons at the White House, Justice Department, and Senate, have discussed "any specific case, legal issue or question in a manner that could reasonably be interpreted as seeking any express or implied assurances concerning your position on such case, issue, or question." If so, nominees are asked to provide a full explanation. Roberts responded to this question with one word: "No."
In responding to the questionnaire's query about his views on so-called "judicial activism," Roberts may have offered some insights into his judicial temperament, if not his judicial philosophy. His response to this written question also provides clues about the extent to which he will be willing to respond to oral questions during the upcoming hearings.
Roberts began with the obvious and sensible observation that "It is difficult to comment on either 'judicial activism' or 'judicial restraint' in the abstract, without reference to the particular facts and applicable law of a specific case." Like literally all of the hundreds of federal judicial nominees who have responded to this question, Roberts expressing misgivings about judicial activism, explaining that "courts should not intrude into areas of policy making reserved by the Constitution to the political branches." Unlike some lower court nominees, however, who seem to have tried to placate senators by categorically denouncing any form of judicial activism and have avowed that they would never deviate from precedent, Roberts frankly declared that "[i]t is not 'judicial activism' when the courts carry out their constitutionally-assigned function and overturn a decision of the Executive or Legislature in the course of adjudicating a case or controversy properly before the courts."
In proceeding to elaborate on these points, Roberts emphasized the need for judicial "humility," a word he used four times in the course of five brief paragraphs. In discussing this "humility," Roberts explained that judges "do not have a commission to solve society's problems, as they see them, but simply to decide cases before them according to the rule of law." He also pointed out that a judge should appreciate that "he is not necessarily the first person to confront a particular issue" and that he should "be fully open to the views of his fellow judges on the court."
Roberts's answer did not, and probably could not, add anything new to the vast commentary on the proper role of federal courts in the American political system. His short, simple, and sound response was for the most part quite predictable. His emphasis on judicial humility, however, helps reinforce the widespread perception that Roberts is open-minded and is not an ideologue. While his acknowledgment that the courts have the duty to review the constitutionally of actions of coordinate branches of government merely states the obvious, Roberts deserves credit for not confining himself to a rote denunciation of judicial review, as have so many lower federal judicial nominees who have responded to the same questionnaire.
On the other hand, his response is troubling to the extent that it ignored two specific issues that the question addressed: "a tendency by the judiciary toward loosening jurisdictional requirements such as standing and ripeness" and "a tendency by the judiciary to impose itself upon other institutions in the manner of an administrator with continuing oversight responsibilities." Roberts easily could have provided thoughtful responses to both of these highly generalized questions without revealing how he would vote in specific cases.
Although Democratic senators are reportedly divided about how intensely to question Roberts, the hearings, like other hearings during the past thirty years, are likely to cover a wide range of issues. Extensive oral examination of Supreme Court nominees is a relatively recent phenomenon, for no nominee appeared before the Committee until 1925, when Harlan Fiske Stone was called answer questions about the propriety of some of his actions as Attorney General. During the next thirty years, the Committee interviewed only two nominees, Felix Frankfurter and Robert H. Jackson, questioning them about their activities rather than their views on legal issues. Beginning with John Marshall Harlan in 1955, the Committee has interrogated every nominee about substantive legal issues. Since the nomination of John Paul Stevens in 1975, the Committee has asked questions about a broad and often comprehensive array of contemporary legal issues. Extensive questioning of nominees is so much a part of the confirmation process that nominees are expected to engage in extensive dialogue with senators. Let us hope that both the senators will ask far-ranging and robust questions and that Roberts will provide detailed and candid responses, while steadfastly refusing to offer any opinion about any issue that is likely to come before the Court.
William G. Ross, a JURIST contributing editor, is professor of law at the Cumberland School of Law at Samford University in Birmingham, Alabama. His publications include several law review articles about the appointment of federal judges. His website is williamgeorgeross.com.