The Proper Scope Of Inquiry In Judicial Confirmation Hearings

How far should judicial confirmation hearings go in asking potential Judges and Justices their opinions about issues that may come before them?

In a piece last week at National Review, Thomas Jipping, who has written extensively on legal issues from a conservative point of view and who currently serves as a senior legal staffer for Utah Senator Orrin Hatch as well as being affiliated with conservative organizations such as The Heritage Foundation, argues against the idea of asking judicial nominees for their personal opinions on contentious political issues:

America’s Founders established a system of government designed to maximize ordered liberty by limiting government. The key word in the preceding sentence is “designed.” The liberty that this system makes possible exists by design, not by accident. And the judiciary, as part of that system, is also designed to work in a particular way. Federal judges interpret and apply the law, such as statutes and the Constitution, as it is and applying it to decide individual cases. They must do both tasks, interpretation and application, impartially by eliminating their personal views as much as possible

When they take the oath of judicial office, these nominees will swear to “administer justice without respect persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me.

Similarly, Rule 2.2 of the American Bar Association’s Model Code of Judicial Conduct states that a judge “shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.” One of the comments explaining this rule advises that “[a]lthough each judge comes to the bench with a unique background and personal philosophy, a judge must interpret and apply the law without regard to whether the judge approves or disapproves of the law in question.”

No one could disagree with that principle, but it should apply to all of the legal authorities that a judge will use to decide cases. That includes not only statutes or constitutional provisions, but also judicial precedents. If a judge must “interpret and apply the law without regard to whether [he or she] approves or disapproves of the law in question,” it cannot be appropriate to demand that the same individual, as a nominee, express such approval or disapproval as a condition of becoming a judge.

On the whole, I think that Jipping is correct here. What a nominee being appointed to a Federal District Court, one of the Circuit Courts of Appeal, or even the Supreme Court believes about a particular political issue outside of the legal arguments that may or may not be involved in considering such an issue should, ideally, be irrelevant to either their qualifications as a judicial nominee, a Judge, or a Justice. While some may view this as a naive point of view, the reality is that a Judge’s personal opinions on an issue should not have any real influence at all on how a Judge interprets the law or applies the facts of a specific case to the law. This is especially true of Judges at the appellate level, for whom the sole relevant issue ought to be the application of the law to the facts on record in the case before them. For Judges at the trial court level, such as the District Courts in the Federal system, the matter is slightly more complicated since they are often called on to make rulings on issues such as witness credibility that inherently call for the injection of some personal opinion. Even in that case, though, how a trial court judge feels about some esoteric social issue is, in the long run, likely to be irrelevant to any case that comes before them.

The classic example of this distinction between personal opinions and the proper role of a Judge can be seen in the Supreme Court’s opinion in the 1989 case Texas v. Johnson, which struck down laws that made it a crime to burn the American flag due to the fact that this was a form of political speech. When the decision was handed down, many people were surprised to see that among the six Justices in the majority were Anthony Kennedy, who had just joined the Court a year earlier after being appointed by President Reagan after both of his previous selections to replace Justice Lewis Powell, Robert Bork and Douglas Ginsburg, saw their nominations fail for different reasons, and Justice Antonin Scalia, who was easily the Court’s most conservative member at the time. Asked about how he ended up in the majority in subsequent years, Scalia stated that while he personally abhorred the entire idea of burning the American flag and would ban it if he were in the Legislative or Executive Branches of government, as a Judge it was clear to him that it was constitutionally protected speech and that the laws against it had to be struck down. This is how a Judge should act with regard to any issue that comes before them, especially a Judge at the appellate level. Therefore, questions during confirmation that ask them for their personal opinions on such issues ought to be avoided.

Another reason that legislators ought to avoid asking Judicial nominees about their personal opinions on political issues, controversial or otherwise, is because doing so places the nominee in a position where they could potentially violate the ethical rules that they would be required to follow as a Judge. As Jipping notes, a Judge is required to put their personal opinions aside when they put on the robe. Additionally, expressing opinions about particular issues, or hypothetical cases, in a confirmation hearing would effectively mean that they would be ethically required to recuse themselves in any case involving that issue that may come before them in the future. This would also be true of questions in which they might be asked to express an opinion regarding cases currently pending in a lower court that could potentially come before them in the future. This is why, since at least the confirmation hearings for Justice Ruth Bader Ginsburg, nearly all nominees for the Supreme Court, and most nominees for the Courts of Appeal, have responded to such questions by stating, correctly, that it would be improper for them to answer questions about issues that they could be required to rule upon if they were confirmed.

Some Senators have attempted to get around the evasion that has become typical in confirmation hearings by asking Judicial nominees if they agree with the outcome in certain landmark Supreme Court cases. In the past, this has included everything from the Supreme Court’s 1803 decision in Marbury v. Madison to more recent decisions in cases such as Brown v. Board of Education, Roe v. Wade and the cases that followed it such as Planned Parenthood v. Casey.

While this may seem like a perfectly reasonable question, I tend to agree with Japping that it is an improper question in many contexts. In the case of Judges below the Supreme Court, it is proper to inquire into how a nominee views precedent and the extent to which they would feel bound by it. When we’re talking about the Supreme Court, though, it’s important to remember that the Supreme Court could someday be called upon to rule on a case that brings the previous precedent into question and may even call for the overruling of that precedent. Requiring them to state on the record how they feel about that precedent would be as improper as requiring them to state for the record what their personal opinions on abortion or any other controversial issue that may come before them happens to be. In any case, as noted above the typical response from nominees since Ginsburg to such questions is that it would be improper for them to respond to the question because they may be required to rule on it as a Justice. That answer may not satisfy a Senator seeking to score political points for the cameras, but it is the only proper response a Judicial nominee should give.

Given the reality of modern-day Judicial confirmations, of course, it’s unlikely that Senators on either side of the aisle are going to take the advice that Jipping provides. For better or worse, the confirmation process has become highly politicized since at least the Robert Bork era, and that’s unlikely to change any time soon. It’s less common to run into this with District Court nominees, of course, but when it comes to appeals court nominees and especially nominees to the Supreme Court, the reality is that Senators will continue to try to ask nominees about their personal opinions and, following the precedent set by Justice Ginsburg, nominees will do their best to decline to give definitive answers to those questions. The result is that confirmation hearings have become less relevant even as the confirmation process has become more politicized. Unless and until that changes, we’re likely to get a continuation of what we’ve been seeing for the past twenty-five years even though it’s largely a waste of time.

FILED UNDER: Congress, Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Franklin says:

    OK, so all those questions are out. But what kind *should* be asked?

    There was a pretty good line of questioning regarding basic facts that Trump’s unqualified nominee Matthew Petersen couldn’t answer. I would hope nobody would be nominated to the SCOTUS without being able to answer those types, but then again Trump is unprecedented in so many ways.

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  2. Modulo Myself says:

    While some may view this as a naive point of view, the reality is that a Judge’s personal opinions on an issue should not have any real influence at all on how a Judge interprets the law or applies the facts of a specific case to the law.

    Taken literally, you are basically saying that no Senator can ask if the judge will be a good judge. You can make a good argument against ‘activist’ judges, but if your actual model of the greatness of the law is best expressed through the story of Billy Budd, it’s a f–ing joke.

    There’s always going to be tension the law and justice. And no text or dead father figure will provide an answer.

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  3. Daryl and his brother Darryl says:

    OT and Breaking:
    Roseanne has been canceled after she tweeted that Valerie Jarrett is the offspring of the Muslim Brotherhood and the Planet of the Apes.
    Frankly I am shocked…

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  4. Kathy says:

    While some may view this as a naive point of view, the reality is that a Judge’s personal opinions on an issue should not have any real influence at all on how a Judge interprets the law or applies the facts of a specific case to the law.

    The problem here is that people tend to be swayed by their biases without even realizing it. Even people who think they are viewing things objectively, can be so swayed. It takes a great deal of deliberate effort not to give in to bias. For example, when I find evidence for my side in some contentious issue, I am extra skeptical of it. My tendency is to agree with it, and to use it in arguments. Instead I slow down, reexamine it, and try to prove it wrong.

    Judges may do this or use some other effective method, but it is relevant for the people, and the Senate voting on their nomination, to know what their biases are.

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  5. Kathy says:

    @Daryl and his brother Darryl:

    Well, that is huge.

    And now the Trumpidian wing of the GOP has a new martyr.

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  6. Dave Schuler says:

    Personally, I’m less interested in what a prospective associate justice’s personal political views are and more in whether they’re interested in using the Court as a backdoor method of legislating. If you want to legislate, get elected to Congress. If you want to adjudicate, be a justice.

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  7. Dave Schuler says:

    In other Supreme Court news today, the Court issued two opinions today, one unanimous and one 8 to 1, Alito dissenting. In other words not every decision is contentious. By my quick count of the 42 decisions during the 2017 session to date 22 have been unanimous, 2 have had only one dissent, and 3 have had two dissenters.

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  8. gVOR08 says:

    Seems like there’s an awful lot of “should” in Jipping’s argument. Judges should impartially arrive at decisions based solely on the law and precedent. Therefore Senators should concern themselves only with,,,what actually? Were this the way it really worked judges would be impartial and interchangeable.

    Republicans don’t seem to agree with Jipping. If they did, we’d have Justice Merrick Garland. They seem to think it’s awfully important to block Democratic judges and fill the courts with their own ideological fellow travelers. The Federalist Society seems to exist to provide a constant supply of such ideologues. I’m sure it would please Jipping if Dems just rolled over and played by his preferred rules while Rs fill the courts with right wingers, but is it realistic to expect them to?

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  9. Just nutha ignint cracker says:

    @Dave Schuler: While I agree with you, I have to note that this theory works better in environments where the members of the legislative branch are committed to the proposition of legislating rather than fobbing that responsibility off onto other branches out of political expediency. We currently have a system in which one caucus seems to only do well at what it intends to do when in is a minority intent on obstruction and inertia. (I’m willing to agree to a “both sides do it” revision upon request.)

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  10. Dave Schuler says:

    @Just nutha ignint cracker:

    Everybody wants to do someone else’s job. The members of Congress all want to be president, the justices of the Supreme Court want to be legislators, and I have no idea what the president wants. It disturbs me even to think about.

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  11. Tyrell says:

    @Modulo Myself: The main focus should be their regard for the Constitution. Many federal judges of today try to rewrite the Constitution and make the law.
    “US Supreme Court is holding their own Constitutional Convention”

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  12. wr says:

    @Tyrell: “Many federal judges of today try to rewrite the Constitution and make the law.”

    Exactly — to the extent that “rewrite the Constitution and make the law” equals “issue decisions I don’t like.”

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  13. Kathy says:

    @wr:

    I only do the troll reminder once a day. You’re on your own 😉

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  14. Andre Kenji de Sousa says:

    In Common Law the personal opinion(Or conscience) of the judge will obviously matter. In fact, even on countries that have a variation of Civil Law the personal opinion will matter. The judge should try to avoid contaminating their ruling with their biases, but their personal opinion will matter.

    Sure that NR writers like judges that writes regressive rulings using the rhetoric of law as a excuse, but I’m sure that these personal opinions will matter, to a higher or lower level.

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  15. Raoul says:

    There is nothing wrong in inquiring about a person judicial philosophy and take on history- we surely do not want someone on the bench who thinks Brown was incorrectly decided- BTW it is my understanding that Scalia regretted his position in the two flag burning cases and that if he had to vote again he would have changed his vote.

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  16. gVOR08 says:

    Pretty much a dead thread, but yesterday Scott Lemieux had a good post at LGM on the ideological leanings of Supreme Court Justices. Includes a couple of good graphics, one showing Kagan, Sotomayor, Ginsburg, and Breyer clustered around the center and the conservative justices (2010 Court) spread out from Kennedy as somewhat conservative to Thomas out in conservative cloud cookoo land.

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