Questioning Alito:
The Pocket Part, Yale Law Journal's new on-line forum, just posted a provocative essay by Yale law profs Robert Post and Riva Siegel entitled, Questioning Justice: Law and Politics in Judicial Confirmation Hearings. There they propose questioning Supreme Court nominees as to how they would decide the classic cases of constitutional law:
In . . . this Article we propose and defend a method of questioning that will enable the Senate to evaluate the constitutional commitments of nominees while preserving the independent integrity of the law. We argue, in brief, that senators can with confidence and authority ask nominees to explain the grounds on which they would have voted in past decisions of the Supreme Court. Such questions serve the democratic design of the confirmation process by revealing the operational content of nominees' constitutional commitments. Asking nominees to disclose how they would have decided well-known Supreme Court cases prevents nominees from explaining their constitutional commitments in terms of abstract principles like "liberty" or "equality," whose practical significance in particular cases and contested areas of constitutional law is unknown. The goal would be to sustain a colloquy capable of adequately informing a senatorial vote on whether to invest a nominee with the independent authority to interpret the Constitution.
This essay is accompanied by four responses by Laurence Tribe, Erwin Chemerinsky, Steve Lubet, and your own humble Volokh Conspiracy blogger.

In my contribution, Clauses Not Cases, I entirely agree with them that the Senate should scrutinize a candidate's constitutional philosophy.
A commitment to respect the Constitution is a matter of judicial character or virtue that goes beyond the credentials that measure pure ability. If senators are to assess judicial attitude as well as ability, then they must, as Post and Siegel correctly observe, "acquire [the] useful information about a nominee's constitutional commitments" that is needed to make such an assessment. Hence, in an example of what Cass Sunstein has called an "incompletely theorized agreement," we three agree, albeit for different underlying reasons, that the Senate ought "to evaluate the constitutional commitments of nominees, while preserving the independent integrity of the law."

But I reject their proposal to ask nominees about classic cases for three reasons:
First, an inquiry into cases would risk turning hearings into a trial by ordeal or, if that metaphor seems exaggerated, then an oral examination. Unless there was a very limited set of canonical cases agreed upon in advance, it would leave candidates open for ambushes that expose their understandable lack of knowledge about any number of cases. While each senator need only ask about just one or two cases, the candidate would have to take all comers or look evasive or uninformed. I doubt whether many constitutional law professors would be able to pass this sort of oral exam, but I am certain that even a very able nominee would likely be unfairly tripped up by such a process.

Second, if we are to maintain our incompletely theorized agreement that such inquiries are proper, whatever method is adopted to ferret out constitutional philosophy should not favor any particular philosophy. Asking about a set of canonical cases is biased towards a "result-oriented jurisprudence" advocated by some, but rejected by others and perhaps even by most. Why? Because a catechism that singles out particular beloved or despised cases would effectively require candidates to pledge their fealty to the results of the approved cases and their abhorrence of the despised ones. Even grounding the "right result" on alternative grounds—the favorite pastime of con law professors—could easily be characterized unfairly as a lack of proper enthusiasm for the approved results, as was alleged about Robert Bork. Regardless of the proffered justification, such a "test" would rest largely, if not entirely, on reaching the results deemed correct, thereby effectively requiring a "just so" constitutional philosophy that somehow manages to reach all the right results.

This suggests a third problem. Such an inquiry privileges the status quo. It takes as normatively given what Jack Balkin has called "the canon" and "anti-canon." But what makes "the canon" at any particular period a canon is solely prevailing attitudes for or against some cases.
A selection procedure that privileges the status quo is very bad, I maintain:
Because it is a constitution they are expounding—I have always wanted to say that—not a set of canonical results. If applied faithfully in the past, their procedure would likely have screened any nominee who questioned the Supreme Court's extant interpretation of the Fugitive Slave Clause in Prigg v. Pennsylvania or its constitutional acceptance of Jim Crow in Plessy v. Ferguson. If you don't like these examples, just think of any well-established precedent we now think was wrongly decided. At one time it was canonical.
I then offer an alternative procedure: Ask nominees about clauses, not cases:
Consider the Second Amendment. Does a nominee rely on its original meaning (and aware of controversies about its meaning) or does the nominee think its meaning evolves or has been superseded by modern developments? Is its meaning one of general principle or is it historically limited to particular practices in effect at the time of its enactment? Does the existence of an individual to right to keep and bear arms preclude all reasonable regulations? Does it apply to the states? Why or why not? Answers to these questions are likely to cohere with how a nominee evaluates other clauses. . . . Even if asking about clauses will not always get Post and Siegel all they want to know about a candidate's constitutional philosophy, it would get what they need.
Of course, I say more than these excerpts, and so do Post and Siegel, so you may wish to read their post in its entirety along with mine.

Why is asking about clauses of the constitution so different from asking about cases? Perhaps the Second Amendment hasn't been addressed as frequently in the case law as other clauses, but other clauses necessarily bring up a particular "canon" and "anti-canon."

I.e., one can't discuss clause X without discussing case Y, even if the aim is to get at a nominee's philosophy rather than his opinion of particular cases.
1.6.2006 8:39am
AppSocRes (mail):
Imagine how different the world would be today if Southern Democrats had been able to ambush Warren, Frankfurter, Brennan, et al. by asking their opinion of Plessy v. Ferguson during Senate hearings. Old KKKers like Senator Byrd would have had a field day.
1.6.2006 9:10am
Isn't "the operational content of nominees' constitutional commitments" concerning, for example, the word "liberty" just a fancy way of describing a particular nominee's political beliefs?

Don't we already have a branch of government meant to represent the political beliefs of the populace?
1.6.2006 9:57am
Mike C (mail):

What about this option: What if the Senators were to confer amongst themselves and develop fake test cases and have the candidate produce an opinion about the test cases? This process would in a way allow the Senators to play some politics, but at the same time keep it to a minimum. The candidate could remain focused on the circumstances of the case, but at the same time could give some insight into their core principles as a jurist.
1.6.2006 10:04am
Noah Klein (mail):
Proffesor Barnett,

I can completely buy and endorse your opinion that asking about particular cases could lead to an ambushing of the nominee and thus not yield any information on the nominee's opinions on the Constitution and his interpretation of it.

Does your opinion though mean that the Senators should not ask the nominee about cases that he has ruled on and the subsequent ruling, if any, from the Supreme Court or other Circuit courts?

1.6.2006 11:14am
classmatewearingyarmulka (mail) (www):
Mike C- Judicial nominees won't answer hypos.
1.6.2006 11:21am
Bruce Wilder (www):
"whatever method is adopted to ferret out constitutional philosophy should not favor any particular philosophy."

Is this really different from wishing that the Senators would not favor or disfavor any particular philosophy? Wanting the nominee's "philosophy" exposed in hearings implies that the Senators will like or dislike that philosophy.

I read that you think a "results-oriented" philosophy would be favored, and that the "status quo" would be favored. And, this would be bad, because it is "a Constitution" that must be interpreted. Aside from the fact that most Supreme Court cases are not "constitutional", why shouldn't the Senators be concerned about whether a nominee would be inclined to accept and maintain, on some grounds, key decisions. The canonical cases are canonical, because they have become part of the fabric of the Constitution. If a nominee were inclined to reject judicial review or incorporation, that would be important to know.

Frankly, my own view is that this whole question only comes up, because conservatives are not willing to be honest about their desiderata, for fear of losing out on their chance to remake the Constitution, by overturning or constricting key interpretations.

I do hope Senators question Alito on Article II, in accord with Randy's recommendation. I am not wild about having a King, ruling by decree and secretly suspending habeas corpus and the rule of law, in a perpetual state of war. I suspect Alito is fine with it, and won't be willing to say otherwise.
1.6.2006 11:52am
Its REVA Siegel, not Riva.
1.6.2006 11:53am
George Gregg (mail):
Frankly, it looks like Alito is going to be confirmed.

Regardless of the erudite back and forth on how he's going to be questioned and what paper trail items might be referred to, there just doesn't seem to be the degree of outrage or inertia against him to decline the nomination.

Sure, he may be opposed to Roe v. Wade, and probably would be inclined to interpret the law to support increasing restrictions of reproduction rights, short of actually overturning Roe. And his favor of aggrandizement of Executive power is particularly troubling. But neither of these, nor the more subtle or esoteric positions on one-man-one-vote and business-vs-labor are so inflammatory outside of special interest groups (recent NSA scandal notwithstanding) that they will sabotage his chances.

There's a lot of debate and combing through his positions, and some senators (Rep and Dem) are playing coy about whether they'll support him, but they probably already know how they will vote and I suspect a majority will vote to approve the appointment.

Unless some major revelation comes out that hasn't already been divulged, I think he's going to take O'Connor's place. After some face-saving posturing in the hearings by senators who want to assuage their constituency, of course.
1.6.2006 12:09pm
Herb Q (mail):
It seems to me that the acceptance of the notion that a hearing should assess a candidate's "constitutional commitment" is procedurally different but substantively identical to evaluating their opinion of various cases. More to the point, it also implies an interest in whether a candidate's view of a particular clause would lead to defined legal results.

I believe most people of all ideological orientations would agree that this is the openly secret point of judicial hearings, no matter which party is in office. After all, if your sole criterion in selecting a judge is intellectual rigor, you might as well pick them out of a hat. So no matter how we wrap these concepts in pretty intellectual trappings, the basic point is to decide whether or not a candidate will or will not support your own legal (and thus results-oriented) preferences.

I would go farther and argue that I think we do the public a disservice by, in effect, concealing this further from a less interested populace. Since I assert that these outcomes would occur regardless of the context of the hearings themselves, I am in favor of allowing any questions possible to most expose what I consider their underlying nature. When we permit candidates to sanctimoniously dismiss a question as somehow inappropriate just because it's ideological, we mask reality without changing the processes' impact upon it.
1.6.2006 12:34pm
fred (mail):
Any attempt to devise an approach on questioning is fruitless.

Because of separation of powers, the Congress has no more power to impose its ideas about how a candidate should be questioned than the Executive, or the Judiciary has. And vice-versa.

The only thing that could be managed would be an agreement on a method to be used. But that agreement could be broached at will by whichever party felt it necessary.

And in any case where it really mattered, (such as abortion)one of the three involved parties would refuse to abide by it.

They would be thrown back on public acclamation or approbation as the only thing to push them to abide by the agreement. In other words, political forces.

Exactly where we are today.
1.6.2006 12:37pm
Roger Schlafly (www):
One problem is that asking about particular cases (historical or hypothetical) is that the answers will generate predictable Yes and No votes from certain senators. The court candidate would then have an incentive to do some vote-counting, and make the necessary promises to get himself confirmed.

I do think that we have a right to know what the candidate's judicial philosophy is. Maybe we should only nominate those with a convincing paper trail.
1.6.2006 12:38pm
Noah Klein (mail):

I think you are right. Yet I still think that the hearing is an important process in this whole nomination business, because it is the best way to get a sense of who the person is and what their positions are. Yet in the end it is most likely he will be confirmed, unless he says something that would offend the sensibilities of many Republican and Democratic Senators. This does not seem to be a possibility anymore.

1.6.2006 12:40pm
For some reason, the proposal that a candidate be asked how he/she would have decided Marbury sounds like the Monty Python man in the street interview:
"[Interviewer:] What would you do differently if you were Hitler?
[Businessman in bowler hat:] Well, first I would annex the Sudetenland."
While it's a clever way to try to get around candidates' reluctance to opine on cases likely to come before the Court, the hindsight element might render it pretty ludicrous. And few candidates would purport to radically change a classic holding in a way that might have altered the entire present legal landscape -- butterflies flapping their wings in Brazil, and all that.
1.6.2006 1:08pm
I agree with Herb Q's description but not necessarily his prescription. The political results of a nominee are currently the "open secret" of confirmation hearings, but I am unsure whether this is desirable, for 2 reasons.

1) Difficulty in predicting the future political importance of both known and unknown issues. Limiting the time period Alito's tenure, one can guess a few issues which will remain politically important. However, the political importance of most known legal issues will rise/fall, and it is difficult to predict, right now, which issues will rise and which will fall. By hypothesis, it is also difficult to predict which unknown legal issues will be politically important in the future. When the time horizon is expanded to include all times in which Alito's holdings or reasoning may be cited, these difficulties become more salient. Because of these difficulties in knowing future importance, a legislator has difficulty in knowing what trade-offs he/she might be willing to make in terms of political results.

2) Difficulty in knowing the politically desirable result of future issues. Because what is politically desirable is based (in part) upon experience, it becomes difficult to know how one might wish a judge to rule on a future issue.

Because of these difficulties, I think it is more desirable to understand the judge's political commitments with respect to judicial methodology. If a politician facing the future unknown wishes to place his/her ideology on the bench, it is more constructive to ask "How would I think about this problem?" than "How would I rule on this issue?"
1.6.2006 1:14pm
Some of these ideas would be a great way of testing a candidate who comes before the Senate as a blank slate, but I really can't see the relevance of holding some type of moot court when you have a nominee who has been a federal judge for decades and has a long paper trail of decisions. If you can't determine the nominee's judicial philosophy from going through hundreds of their prior rulings, I doubt you're going to determine it in the course of a few days of questioning.
1.6.2006 6:30pm
law student guest:
I think this is a good idea to get answers about constitutional philosophy, without intruding on judicial independence and without positing hypos that either may come before the Court, or may be open-ended and impossible to answer without a number of qualifications. As I see it, the biggest problem with this proposal is that it is inpractical. For any nominee, there would likely be several cases which he would have decided differently than the way preferred by Senators of his/her party. One can name any current Justice and find decisions that are loathed by those who usually agree with that Justice (e.g., Scalia and Johnson v. Texas; Kennedy and an increasing number of cases). Also, there will be cases where although the nominee agrees with the majority of his party's Senators, his/her answers may result in 'no' votes from a few of those Senators (e.g., McCain and campaign finance; several Republican Senators and Roe v. Wade).
1.6.2006 9:16pm
William Baude (mail) (www):
Can I ask the naive question of why it "intrud(es)" on "judicial independence" to ask people who are not yet Justices of the Supreme Court what they think they would be likely to do if they were Justices of the Supreme Court? Surely nobody thinks a promise, pledge, prediction, or statement would actually be enforceable if the person made it to the bench.
1.6.2006 10:44pm
Interested questioner:
One thing that I am wondering is why is the confirmation process so different from what a Judge will end up doing. What I mean is that from the bench the Judge will be asking the questions and attempting to ferret out positions and logical inconsistencies. So why don't the confirmation hearings include having the judge ask questions of the Senators?

Now I know why it would never happen, but from a logical perspective shouldn't we be able to see how a judge will ask questions? And what would this rule have done for Judge Thomas?

IANAL and maybe this has been brought up before but I've never seen any comments on the idea.
1.7.2006 6:51pm