It's the Specifics, Stupid. . . .
A Commentary on The Kind of Substantive Questions the Senate Can and Should Pose to Supreme Court Nominees

This column is Part One in a series on how specific judicial nominees should have to be in answering legal questions put to them by the Senate. The column builds on and develops some ideas suggested in an Op-Ed piece by the author in the New York Times on Wednesday, July 27. -- Ed.

I cringe when I hear that a judicial nominee might, if confirmed, try to "use his position as a judge to legislate." Don't you just hate it when Supreme Court Justices march across the street to the Capitol building, call for a voice vote on a bill, and then sign it into law?

The problem with the metaphor of judicial legislation is, of course, that no one knows (or at least agrees on) what it means. So too with "judicial activism," "strict construction" and the like. For instance, Justice Scalia is famously a "textualist," and yet has (openly) ignored the plain text of the Eleventh Amendment in deciding cases about states' rights. That makes him a rather more complicated textualist than might originally be supposed.

The only - I repeat, only - way to understand a Supreme Court nominee's approach to deciding big cases is to dig beneath general labels and look at past specific big cases themselves, to see what the nominee says in or about these actual legal disputes. When I give a constitutional law exam, if I allowed students to answer a question without requiring them to comment on specific cases, what the cases mean, whether the cases were correctly decided, and why or why not, I would have no basis on which to issue grades.

It seems that John G. Roberts lacks a lengthy and unambiguous "paper trail" marking out his own views. That means that if the country is to have any meaningful sense of the direction(s) in which a "Justice" Roberts might move the nation's jurisprudence - and that, after all (rather than his credentials or his religion), is the overriding question - then he has to tell us what he thinks about specific important legal controversies of our day.

And yet this may not easily happen, because over the years many Senators - even diligent Senators - reflexively and unwisely seem to have conceded that while it is appropriate to ask a nominee about his general approach to judging and interpretation, it is not permissible to ask for detailed views about actual cases. This is nonsense. If it's not right to ask a nominee for specific views about specific cases, there is little point in even having a hearing.

The Weakness of the "Prejudging" Objection

The most common objection to specific case queries is that for a Supreme Court nominee to comment on the correctness of a past ruling would be to prejudge the issues presented in that ruling should those issues recur on the Court after the nominee has been confirmed. Rubbish. If a nominee violates principles of judicial ethics by giving his views on a case that raises recurring issues, why wouldn't the same be true for the sitting Justices themselves who - in written public opinions and dissents - have given their views in the very same case?

Are these Justices, who have spoken on an issue in a case, disqualified from participating in another case down the road that poses the same or similar questions? Of course not. They are still well suited to hear the later case, and are free to change their minds if they are convinced it makes sense to come out another way.

A clever response to my suggestion here might be to concede that speaking about the rightness or wrongness of particular cases doesn't make a jurist prejudiced per se, but that it still is problematic and thus something to be avoided if possible. In the situation of a sitting Justice, regrettably, there is simply no way for her to do her job without voting (and explaining her vote) in cases that come before her.

Perhaps. But just as a sitting Justice has a "job to do" in deciding cases, so too a nominee has a "job to do" in giving the Senate information about the kind of Justice he will be, so that the Senate can do its constitutionally assigned job of "advice and consent." In any other setting, Americans would think it ridiculous that someone being interviewed for a position could decline to answer questions about how he would have handled real world situations in which past employees had done things that either pleased or displeased the ultimate employer (who in the case of the Supreme Court would be the American people).

Moreover, if sitting Justices are justified in talking about the merits of cases only because Justices have to in order to resolve the cases in front of them, how could one ever explain or defend the quite common practice of Justices talking about the merits of cases in other settings, such as law review articles and speeches? (Justice Scalia, in whose mold the President has said he wants to appoint people, expresses views about the correctness or incorrectness of specific cases in articles and speeches all the time.)

The Key Distinction Between Promise and Prediction

So it cannot be that answering questions and rendering views about past cases is inherently problematic. But the form that the questions and answers take should be carefully chosen so as to avoid any suggestion that the Senate is seeking, or the nominee is giving in order to get confirmed, promises of how he will rule in the future.

Explicit or implicit promises about future rulings are out of bounds - such promises if sought and given would indeed compromise judicial independence and due process of law. Our Constitution sets up three independent branches; the judiciary is not supposed to be the puppet of the Congress or the President.

But a nominee's disclosure of specific views about actual past cases does not commit him to rule any particular way in the future. He remains free to change his mind if persuaded by sound legal arguments in later cases. Just as then-Justice Rehnquist in his confirmation hearings for Chief Justice in 1986 could have properly - without making any impermissible promises -- told Senators that particular of his own prior Supreme Court writings as Associate Justice accurately reflected his constitutional vision (and no one could really doubt that this would have been proper), so Roberts can explain to Senators that he agrees -- or disagrees -- with particular opinions of Rehnquist or others.

The Supreme Court has itself already recognized this key distinction -- between permissible predictive information on the one hand, and impermissible promises on the other. In Republican Party of Minnesota v. White, (a case analyzed in depth in one of my earlier columns), the Court invalidated a Minnesota regulation that prohibited every candidate for judicial election from "announc[ing] his or her views on disputed legal or political issues." In striking the limitation down, the Court was careful to point out that Minnesota elsewhere prohibited each judicial candidate from making a "pledge" or "promise" to decide a particular issue a particular way, a prohibition that was not being challenged and as to which the Court did not express any skepticism.

The Court in White also said many other things relevant to the topic before us today. First, the Court observed that if we define what is out of bounds in terms of issues "likely to come before the courts," we will have excluded everything, because "there is almost no legal or political issue that is unlikely to come before a judge of an American court, state or federal, of competent jurisdiction."

Moreover, the White Court noted that allowing "general" discussions of case law and philosophy while at the same time foreclosing specific statements of specific views of candidates does not provide the public with the relevant information it needs. Why? Because "like most other philosophical generalities, [general statements of judicial philosophy] ha[ve] little meaningful content for the electorate unless [they are] exemplified by application to a particular issue of construction likely to come before a court - for example, whether a particular statute runs afoul of any provision of the Constitution."

Are Statements In Front of the Senate More Problematic Than Statements to the Public in a Judicial Election?

One way to deflect the relevance of the analytic framework set up in White would be to argue that a nominee's statements in a Senate hearing are more problematic than are similar statements made directly to the public, in the form of actual prior opinions, speeches, law review articles, judicial campaign literature, and the like.

But this argument has little force. Indeed, because a nominee can carefully qualify his statements to the Senate - and make clear he is not making any promises - more easily than he can in other settings, answering the Senate's questions creates less risk of improper appearances than do statements made in other settings.

Moreover, because of Article III's guarantee of life tenure, any "deals" in the federal system are much less enforceable than they would be in states where judges must stand for reconfirmation elections and/or are susceptible to the recall device. Thus, the Senate is a setting where it is less, not more, problematic for a nominee to state his views without appearing to be making deals.

It is also worth noting that the public well understands that Supreme Court nominees are picked and confirmed based on specific things they have done (and the views those things represent) in their lives prior to the moment of their nomination. Because of this societal recognition, nobody would think the Senate is extracting any untoward bargains when it asks a nominee to share preconceived views that likely accounted for the nominee having been picked in the first place.

These points are also reinforced by the Court's keen analysis in White. In discussing the problem of judicial "partiality" and the appearance of "partiality," the White Court drew a careful distinction between issues and parties. A judge is not "partial" just because he has preconceived leanings about legal issues (so long as he will read the briefs with an open mind). He is biased only if he has preconceived leanings in favor of or against particular parties.

Thus, so long as a judge applies his legal views - even long-held and long-expressed legal views - evenhandedly to all parties (and avoids talking about actual parties currently or presently before him), he is not doing anything that suggests any appearance of impropriety, let alone any actual impropriety.

As the White Court observed: "Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias."

The Concessions Made by Those Who Object to Specific Questions Already Prove Too Much

On top of all this, the fact that everyone seems to concede that nominees can and should talk about their own past statements and writings about specific cases (from the bench or elsewhere) in front of the Senate devastates any objections to asking nominees their views about all past cases, from all major courts. If a nominee can explain, justify and stand behind what he has written about a legal issue in the past without "prejudging" or "committing to a resolution of" that issue, then why can't he explain, justify and stand behind his view about what other jurists have written?

Similarly, the following question should be posed to those who want to argue for some line between general philosophy and specific case commentary: Why doesn't discussion of a nominee's general philosophy amount to "prejudging" or "precommitting" with respect to that philosophy?

For example, if a nominee says in response to a query about the philosophy of stare decisis (or adherence to precedent): "I believe strongly in the doctrine of precedent," is he promising that he will always and forever, even after he assumes his new judicial post, believe so strongly in the doctrine of precedent? If so, then why are questions about a candidate's views on stare decisis okay? And if not - because the candidate is free to change his mind -- the same lack of commitment applies to views on specific past cases, not just views on big ideas like stare decisis.

The distinction between general philosophy and specific case views is, then, incoherent and unworkable (as I argued a decade and a half ago in my law student Note); instead, the relevant distinction is between an informed prediction (which permissibly may be sought), and a promise (which should not be requested or given.)

Debunking Logistical Objections

But what if the nominee were to say: "I haven't read all the briefs in the case about which you ask, so I'm not sure which result makes the most sense"? The Senate rejoinder should be: "Here are the briefs and oral argument transcripts - get back to us in a few weeks" (the way real Justices have to do when they vote on a case only a few weeks after having read the briefs.)

If, instead, the nominee says: "I can't be sure how I would vote until I know that the outcome of a real world case actually turns on my vote," the comeback ought to be: "We're not asking you to analyze an abstract hypothetical - the fact that there's a published Supreme Court opinion on the merits means there was a concrete and ripe controversy here. And to the extent that your sense today about how you would have voted is imperfect because your views won't count in that case as it was actually handed down, we will take it for whatever it might be worth."

(By the way, the questioning Senator might add, votes by dissenting Justices in actual cases are similarly irrelevant to the outcomes in those cases, but that irrelevance does not deter Justices from registering dissents. Nor does similar "outcome irrelevance" deter Justices from writing law review articles or speeches about cases.)

Which Cases Should the Senate Focus On in Questioning Judge Roberts?

In the end, the real question ought not to be whether a nominee can be forced to say whether he thought actual cases were correctly decided or not, but rather: Which cases ought we to force a nominee to weigh in on, to best take the constitutional measure of (in this instance) the man?

Here's my thought: Let's all spend August identifying ten or so closely divided (5-4 or 6-3) Supreme Court decisions from the past decade covering a range of important constitutional and statutory areas, and let's ask Judge Roberts to do what lawyers all across the country do every summer after big cases come down - read the majority opinions, concurrences and dissents, and say who got the better of the legal debate in each of the cases.

I have specific and detailed views about which cases would be the most revealing. And I, for one, am happy to share some of these views, which I shall do in my next column.