Stuart Taylor On Querying Roberts:
Stuart Taylor offers a typically thoughtful discussion of the pros and cons of requiring Supreme Court nominees to disclose how they would expect to vote in particular cases if confirmed to the Supreme Court. Taylor gets to the issue that I think is the real question: how requiring a nominee to answer at the hearing stage would impact the White House's selection process.
Hat tip: Howard.
As of now, the president and his people avoid asking potential nominees detailed questions not only because of ethical scruples but also because they know that senators would demand full disclosure of all questions and answers; would denounce the White House for exacting and the nominee for providing "litmus-test" answers; and would properly expect similarly detailed answers to their own questions.I'm not sure of where I come out ultimately on the normative question of how much nominees should be required to disclose. But I think Taylor may be on to something. As an abstract question, it seems to me that disclosure of a nominee's tentative thinking on a question is mostly a good thing, all other things being equal. The tougher question is the presumptive need for information symmetry at the selecton and hearing stage. As Taylor points out, if detailed questioning at the latter stage is okay, then detailed questioning at the former stage presumably is okay, too. Given that, I'm not sure if a regime of more detailed questioning at the hearing stage would have the effect that its proponents think. VC readers, what are your thoughts?
The converse is also true. To the extent that senators succeed in forcing nominees to detail their views publicly, the White House will feel freer to grill potential nominees secretly. Does the president want a nominee who has implicitly committed to vote in certain ways on abortion, gay rights, religion, and — most important of all — the president's own claims of virtually unlimited war powers? He could direct his staff to grill would-be nominees until the staffers get the right answers.
Of course, in order to win confirmation, the nominee would have to give very different sworn testimony to the Senate. So presumably, the White House would not keep transcripts. But once on the Court, those who had successfully slimed their way through this gantlet would know that their sponsors and friends in the White House were watching.
Would such new justices adhere to their secret commitments, or to their public ones? Would they welsh? Do we want honest, independent jurists? Or do we want political hacks?
Hat tip: Howard.
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