The Confirmation Equivalent of the 5th Amendment
Kevin Drum, chagrined that Supreme Court nominees sidestep most questions from the Senate on the grounds that it might prejudice their opinion in a future case, observes,
In a remarkable evolution of democracy, we have now entered an era in which candidates for the Supreme Court are allowed to glide through their hearings without once giving a straight answer about anything having to do with the laws or constitution of the United States. After all, Supreme Court justices might conceivable rule on anything in the future. It’s yet another sign that the separation of powers envisioned by the founders has slowly morphed into a de facto parliamentary system Ã¢€” except without any of the institutional means of accountability normally built into a parliamentary system. Someday Congress is going to regret that.
While there’s little doubt that Congress has allowed its power to erode in favor of both the Executive and Judicial branches, this doesn’t strike me as an example of that. For one thing, judicial nominees have been defeated much more frequently in recent years than in the early days of the Republic, when the powers of the legislature were at their highest. More importantly, nominees seldom attempt to deflect questions about their judicial philosophy. Certainly, to take the most recent case to go through the entire process, John Roberts didn’t.
The combination of the intense polarization of the abortion issue, the perfection of the fundraising machinery of both parties, and the live televising of judicial hearings creates a feeding frenzy where Senators are even more inclined to make asses of themselves than usual. They trip all over themselves grandstanding on the abortion issue, trying to trap nominees infinitely brighter than themselves with parlor tricks. Nominees have little choice but to respectfully dodge issues on specific cases that are outside the realm of settled law. The fact that abortion cases keep making their way to the SCOTUS docket would seem proof that the issue is very much alive.
Declining to answer questions “on the grounds that the issue might come before me were I to be nominated” is the judicial equivalent of taking the 5th. It is much more friendly than, “You know damned well that I can’t answer that, you moron.”