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Questioning Supreme Court Nominees About Their Views on Specific Questions:

I have a post about this on the L.A. Times LiveCurrent blog, but I reproduce it below. The question posed was, "Is it appropriate to ask a Supreme Court nominee his/her views on specific issues that are likely to come before the court?" Here's my response:

Tough question -- good arguments on both sides. Right now, let me just air one.

Judges are obligated to think carefully about the parties' arguments in every case, and be open to changing any preconceived views they may have. Naturally, they'll often adhere to their earlier views -- but sometimes they do reconsider. (For some examples of how justices' views have changed from one decision to another, see here; but they may also change their minds from their pre-confirmation views, when they first face a concrete case that requires them to seriously focus on the matter.)

Occasionally, a justice's vote will deeply disappoint those who wanted to see him on the Supreme Court. It might even differ from views he stated in pre-appointment opinions or articles. But observers will generally just assume he changed his mind, though they might bemoan the change.

But imagine a justice testifies under oath before the Senate about his views on (say) abortion, and later reaches a contrary decision. "Perjury!" partisans on the relevant side will likely cry: They'll assume the statement made with an eye towards confirmation was a lie, rather than that the justice has genuinely changed his mind. Even if no calls for impeachment follow, the rancor and contempt towards the justice would be much greater than if he had simply disappointed his backers' expectations.

Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion. Yet that would be a violation of the judge's duty to sincerely consider the parties' arguments.

Of course, there'd be little pressure of this sort in a political system in which people assume their adversaries are basically honest, disagreements represent honest differences, and changed positions represent honest changes of mind. When you find such a political system, please let me know.

Related Posts (on one page):

  1. LA Times Live Current Blog:
  2. Questioning Supreme Court Nominees About Their Views on Specific Questions:
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LA Times Live Current Blog: Eugene recently mentioned his contribution to the Los Angeles Times Live Current blog, and I wanted to offer a broader plug for it. "Current" is the new name for the Sunday opinion section of the Los Angeles Times, and they have set up a blog on the Supreme Court and the confirmation process that will be open until the open seat(s) are filled.

  The LA Times Live Current blog is sort of half op-ed, half blog; invited contributors e-mail in responses to questions proposed by the editors, and the LA Times editors edit them, title them, and pop them on the Web. (Some of the posts might make their way into the Sunday LA Times, too.)

  I don't know the entire group that the LA Times has invited to participate, but it should be a very interesting bunch: Eugene and I are in on it, and other co-bloggers on the site that have posted so far include big names like Cass Sunstein, Erwin Chemerinsky, Douglas Kmiec, Richard Epstein, John Yoo, and Edward Lazarus.

  It's interesting to note that, as Todd points out below, the Washington Post has also set up a blog on the Supreme Court vacancy. Have other major newspapers done this, or only the WaPo and LAT?
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