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Questioning the Nominee

By TChris, Section Judiciary
Posted on Mon Jul 04, 2005 at 10:07:31 AM EST
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by TChris

Some Senate Democrats believe that their obligation to advise and consent regarding Supreme Court appointments requires them to know something about the nominee's views. Something beyond the predictable, "I will be faithful to the Constitution and only vote to overrule settled law in the rarest of circumstances."

"All questions are legitimate," Senator Charles E. Schumer of New York, a Democratic member of the Judiciary Committee, said in an interview. "What is your view on Roe v. Wade? What is your view on gay marriage? They are going to try to get away with the idea that we're not going to know their views. But that's not going to work this time."

Many Senate Republicans want none of it. They argue that judicial candidates shouldn't be required to prejudge cases that might come before the Court. True, it would cross a line to insist that a nominee explain how he or she might vote in a case that's been accepted for review, but there's nothing wrong with insisting that a nominee opine about the wisdom of cases--like Roe v. Wade--that have already been decided. How can the Senate give informed advice or decide whether to consent if the nominee keeps her thoughts about the legal issues of the day to herself?

Here's Orrin Hatch's take:

"I don't think nominees have to answer certain questions. They don't have to answer questions about how they are going to vote in the future. They don't have to answer stupid questions. They don't have to answer argumentative cases."

It would be fun to hear a nominee respond: "That's a stupid question, Senator, and I don't answer stupid questions." But "Do you believe Roe v. Wade was correctly decided" isn't a stupid question, and it's one that nominees should forthrightly answer if they expect to be confirmed.

More disturbing than Republican attempts to define questions that elicit useful information as "stupid" are Republican attempts to keep Democrats from reviewing the information that will be uncovered in FBI background checks on the nominee.

Republicans say they will try to limit the access senators would have to F.B.I. documents on the potential nominee - the unpredictable wild card in any judicial confirmation because even the White House cannot fully anticipate the outcome of the background investigation when the president makes his choice.

And we see just how useful the "compromise" over the nuclear option has been--the one that allowed the president to have his nominees confirmed (exactly the result that would have occurred if the nuclear option had been exercised) while supposedly taking that option off the table for future nominations. Hatch didn't get the memo.

Mr. Hatch said in a later interview that he could not see "any circumstances where a filibuster would be appropriate." He warned that if Democrats tried to mount one, the Senate would most likely revert to the so-called nuclear option to bar the use of a filibuster to block judicial nominees.

< Nuclear Option Time Again? | Open Thread >

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    • Questioning the Nominee | 6 comments (6 topical)
    Re: Questioning the Nominee (none / 0) (#1)
    by jarober on Sat Dec 17, 2005 at 01:00:50 PM EST
    bearing in mind that at some point, the shoe will be on the other foot. I expect a full dose of hypocrisy from TL at that point.

    Re: Questioning the Nominee (none / 0) (#2)
    by scarshapedstar on Sat Dec 17, 2005 at 01:00:50 PM EST
    Is JR on the 4-post list yet?

    Re: Questioning the Nominee (none / 0) (#3)
    by Talkleft Visitor on Sat Dec 17, 2005 at 01:00:50 PM EST
    It sounds as if new rules are being proclaimed for Bush's nominee. Just as a change in the filibuster rule would affect a future political minority, so will a change in standards to judge Supreme Court nominees affect the next Democrat President.

    Re: Questioning the Nominee (none / 0) (#4)
    by ppjakajim on Sat Dec 17, 2005 at 01:00:50 PM EST
    FOJ writes:
    Just as a change in the filibuster rule would affect a future political minority
    Actually it will also have an effect on the current political minority.

    Re: Questioning the Nominee (none / 0) (#5)
    by scarshapedstar on Sat Dec 17, 2005 at 01:00:50 PM EST
    I think his point was that there will be a new minority party in a few years. That is, unless the Republicans continue to ensure that their favorite voting machines have zero assurance of reliability. (Have they even bothered justifying their adamant opposition to the most basic, common-sense security measures?)

    Re: Questioning the Nominee (none / 0) (#6)
    by Ernesto Del Mundo on Sat Dec 17, 2005 at 01:00:51 PM EST
    Actually, I think both parties have pushed this argument in the past. While I don't see the utility of asking hypothetical questions of a nominee (since the practical and obligatory non-answer is "I will decide a case based on its own individual merits") there are cases where a nominee has had virtually no history in decisions on some important issues. Would you feel comfortable voting to approve a judicial pig in a poke for a lifetime appointment? It's a crapshoot. Sometimes there are pleasant surprises (David Souter) and sometimes the expected disaster goes true to form (Clarence Thomas).

    Questioning the Nominee | 6 comments (6 topical)