Nice Debate About Confirmation Questioning:
There is a nice debate on LegalAffairs Debate Club between Erwin Chemerinsky and Brannon Denning on the sorts of questioning that Senators should engage in during Supreme Court confirmation hearings. Brannon is off to a strong start. Here is his closing shot:
However, as I am sure you would agree, it is often quite difficult to answer constitutional questions in the abstract. Indeed, you wrote that "[a] nominee should not say how he or she [would] vote on a particular issue because . . . that will be a product of the specific case and the arguments presented." But it seems to me difficult to relate abstract views "on crucial constitutional issues of the day" to a nominee's likely performance in the context of a specific case. Thus, recent Supreme Court confirmation hearings have a Kabuki quality about them. Senators ask vague, abstract questions; nominees attempt to respond in a manner calculated to communicate the least information without offending the questioner. As a result, recent nominees to both the Supreme Court and the courts of appeals all admire Justice John Marshall Harlan II, judicial restraint, and all agree that Korematsu, Plessy v. Ferguson, Lochner, and Dred Scott are the worst Supreme Court decisions ever handed down. And senators have demonstrated a reluctance to be satisfied with nominees' attempts to differentiate their personal views on a matter, like abortion or gay rights, with their acceptance of the court's decisions in these areas as a matter of law. Some senators, in fact, have even shown a reluctance to accept the distinction you proffer between stating one's views and not committing one's self to declaring an intent to vote one way or the other.The debate will last all week. Some may also be interested in reviewing my debate with Cass Sunstein on the so-called "Constitution-in-Exile" movement--which is not irrelevant to today's debate--which you can find here.
Thus, I'd ask what kinds of questions would you propose that could plumb a nominee's views without asking him to commit, in advance, to particular positions? And what sorts of answers should be seen as disqualifying