More on the Propriety of Asking Judge Roberts to Comment on Specific Past Supreme Court Rulings:
Part Two in a Series

In my previous column, Part One in a series, I debunked a stance adopted by some commentators and Senators that, while a Supreme Court nominee may legitimately be asked by the Senate questions that go to his general judicial philosophy or methodology, the nominee should not be asked or forced to comment on specific past Supreme Court rulings.

I argued on a number of grounds that any such line between general and specific questions is incoherent and unworkable.

To begin with, general questions do not yield the key relevant information about what kind of Justice someone is likely to be - the Senate often can't get a meaningful sense of philosophy without talking specifics.

Moreover, any judicial ethical objections to specific case queries logically cut too broadly, and would suggest that sitting Justices who have opined -- on or off the bench -- about the merits of issues could not be impartial in future cases.

Relatedly, there is no material difference between asking a nominee to comment on his own past statements, and the past statements of others, including the past statements of the Supreme Court.

And, interestingly enough, the Supreme Court itself has effectively recognized all of this in its Republican Party of Minnesota v. White ruling a few years ago.

For these and additional reasons as well, I argued that the proper and defensible line is not between general and specific, but rather between predictions and promises: Questions that facilitate a Senator's prediction of the kind of substantive rulings a nominee might render on the Court are okay, provided the questions do not seek implicit or explicit pledges or promises by the nominee that he will vote in a certain way.

Indeed, to assure clarity that no promises are being sought or offered, every question - and every answer - should acknowledge that whatever views are shared in the Senate hearing are tentative, and that a Justice must always read the briefs and other materials in a case and be open-minded to changing his prior inclination if arguments and evidence persuade him.

Before identifying particular past Supreme Court rulings on which Judge Roberts should be questioned - which I will do later in this series - I use today's column to anticipate and address a few additional rejoinders/objections that Judge Roberts and his supporters may assert if Senators are insistent in posing the kind of questions I suggest.

Some of these objections seem particularly likely to arise because Roberts has already relied on them in the past - either when he was being confirmed for his current seat on the D.C. Circuit, and/or when he was advising then-nominee Sandra Day O'Connor as to how to handle her Supreme Court confirmation hearings.

Roberts's Stance on Specifics During His 2003 D.C. Circuit Court Confirmation Hearings

During his Court of Appeals confirmation process, Mr. Roberts was asked by a few Senators to share his tentative views about actual past Supreme Court rulings. When this happened, Roberts almost without fail (he did slip up a few times and actually answer the question) asserted that it would be inappropriate for him to comment critically on the work product of a Court whose opinions would be fully binding on him in his capacity as a lower court judge. He intimated that the only relevant question was not what he thought of particular Supreme Court rulings, but rather whether he could, in good conscience, faithfully follow those rulings regardless of his own views of things. Unsurprisingly, Roberts repeatedly said he could - and would - faithfully follow and apply all Supreme Court rulings, even the most controversial.

This tactic employed by Mr. Roberts, while possessing a degree of plausibility and displaying his cleverness, was not entirely satisfactory last time around, and is completely unhelpful this go-round.

It was not completely satisfactory in 2003 because even though Roberts was correct that all lower court judges must and do obey binding Supreme Court precedent, there are many legal questions that come up in the lower courts that are not necessarily or easily answered by reference to Supreme Court cases. After all, the Supreme Court decides fewer than a hundred cases a year these days - it can't make that much law!

And a lower court judge resolving these unanswered, or interstitial, questions necessarily has to decide whether he is going to extend, or try to limit, the application of each of the relevant -- but not directly dispositive -- Supreme Court rulings in the area. It is in exercising this discretion - which surely arises in many important cases - that a nominee's views about the correctness of the Supreme Court's past rulings may give a hint about his leanings.

In any event, Judge Roberts won't be able to reprise this part of his 2003 Senate performance next month. Why? Because Supreme Court Justices - unlike lower court judges - are not absolutely bound to follow past Supreme Court cases. The Justices can, and do, overrule past decisions. For this reason, knowing a high Court nominee's tentative views of actual cases is obviously important.

What Roberts Said In His September 9, 1981 Memo to Sandra Day O'Connor

As Sandra Day O'Connor was preparing for her own confirmation hearings over two decades ago, a young John Roberts working in the Administration advised her to avoid commenting on specific past Court rulings, and to limit her remarks to matters of general philosophy or methodology. On September 9, 1981, Roberts wrote to O'Connor a tart one-page memo in which he made (but did not thoroughly explain) at least two points worthy of discussion here.

First, as to the general usefulness (or, to his mind, lack thereof) of specific case queries by Senators, Roberts said: "If nominees will lie concerning their philosophy they will lie in response to specific questions as well." Even if this were true, it completely misses the point. The problem with general philosophical questions is not that they will yield lies, but rather that they will yield truths that are too generic and broad to be informative and helpful. We should not (and need not) assume that nominees for the Supreme Court (almost all of whom are going to be very honorable people) will lie under oath before the Senate; the utility of asking specific case queries doesn't arise from a fear that nominees will lie in response to the general questions.

Second, Roberts rejected the crucial idea that answers to specific case questions are okay so long as they don't take the form of promises or pledges. According to Roberts, even if a promise is disclaimed, "[t]he appearance of impropriety remains." As I argued in Part One of this series, we should take into account appearances of impropriety, and that is why we must be careful in the way we pose questions and frame answers.

But an extreme and excessive fear that some people out there might misunderstand the nature of a proceeding -- and see an illicit deal where none exists -- simply cannot justify the Senate's abdication of its advice and consent duties. Some people might think a nominee's simply showing up to a Senate hearing constitutes an improper promise by the nominee to rule later on as the Senate wishes. The question is not what someone out there might think - the question is what reasonable, well-informed people would understand.

Once We Use the Proper Standard - One Endorsed by Justice Scalia - It Becomes Clear There Is No Appearance of Impropriety

The Supreme Court recognized all of this in the White decision I explored in depth last column. As Justice Scalia's majority opinion pointed out, Minnesota explicitly prohibited candidates for judicial office from making pledges or promises to rule a certain way in the future. In light of this prohibition, the State's separate additional ban on candidates announcing their current views about contested legal or political matters did not do very much in accomplishing the State's asserted interest in avoiding an appearance of impropriety. Put another way, the promises ban went such a long way toward avoiding an appearance of impropriety that a ban on the mere announcement of views was pretty much overkill.

Moreover, as Justice Scalia pointed out, since judges and judicial candidates state their substantive views on legal issues all the time before they are formally candidates, the public understands that none of the expression of views by someone prior to his taking the bench involves problematic commitments.

Although the White case involved a law that prohibited judicial candidates from speaking their mind - rather than a rule that would require judicial candidates to open up - the analysis of White is directly relevant here. The reasons Judge Roberts is likely to invoke -- in order to defend not answering the Senate's specific case queries -- are precisely the same reasons that Minnesota unsuccessfully advanced to defend its law. The White Court explained that these reasons simply are unconvincing - they seem makeweight. And if a nominee can give only unconvincing, seemingly makeweight reasons for declining to answer Senate questions that seek demonstrably relevant and non-privileged information, then his refusal to answer should reflect poorly on, and count against, the nominee.

Nor is White the only recent judicial development that bears significantly on the "appearance of impropriety" question. Also quite relevant is Justice Scalia's in-chambers opinion two years ago in Cheney v. U.S. Dist. Court for the Dist. of Columbia, where he explained his decision not to recuse himself in that case, notwithstanding the flack over his famous "duck hunting" trip.

In particular, in Cheney Justice Scalia reminded us all that judicial ethics decisions - such as what judges should say in public and when they should hear cases, etc. - should be based on an assumption that the public knows the true facts, not some stylized version of the facts.

In the context of Supreme Court nominations, this means we should assume the public knows that Senators are careful to disclaim seeking promises, and that Article III's grant of lifetime tenure to federal judges makes promises almost impossible to enforce and thus unlikely to be made, and that Presidents pick nominees based on predictions of how the nominees will likely vote in specific cases. Once a member of the public understands all of this, careful Senatorial questioning of a nominee about his views of past cases raises no appearance of impropriety.

Justice Scalia's Cheney opinion also illustrates that government must do a good job of educating the public, so that laypeople don't labor under misconceptions; the remedy for remotely possible appearances of impropriety is often not more discretion by officials, but rather more education by officials.

"RBG Rules"

Judge Roberts and his supporters are also likely to invoke, as relevant Senate precedent, the fact that Ruth Bader Ginsburg, in her Supreme Court confirmation hearings over a decade ago, declined to answer some questions about past Court cases, and was nonetheless overwhelmingly confirmed. But a number of points about the Ginsburg proceedings should be made.

First, then-Judge Ginsburg was wrong to resist answering many questions. It bears noting that the weak reasoning she invoked in 1993 was rejected by the Court majority in White a decade later. Some Senators, on both sides of the aisle, challenged Ginsburg, but too few Senators stood on procedural principle to try to force her hand. Shame on those who didn't press.

Second, Ginsburg did talk about a lot of specific Supreme Court cases in many important areas of law, particularly ones on which she had commented as an academic or a lower court judge. Of course, the fact that then-Judge Ginsburg answered many specific questions undermined the intellectual integrity of her reluctance to answer others: If there is an appearance of impropriety in commenting on Supreme Court opinions, the troubling appearance does not dissipate merely because the nominee has commented on the same cases in other settings as well as in front of the Senate. But the fact that Ginsburg talked about many cases - even as she contradictorily indicated it was improper to talk about past specific cases - may explain why some Senators didn't push her harder.

Third, and relatedly, because Ginsburg (unlike Judge Roberts) had a long track record of speaking for herself - not for clients - as a lower court judge and an academic, many Senators may have felt they already had adequate information about her tentative leanings. The "stealthier" a President's pick is, the more important specific case queries at the hearing are.

Fourth, and finally, the Ginsburg proceedings are just one data point. Judge Bork, for example, was very forthcoming in answering specific questions about specific cases in 1987. The confirmation proceedings for Justices Souter, Thomas and Breyer are also mixed bags. The Senate simply hasn't been consistent in developing coherent and sensible rules for its questioning - sometimes it has been aggressive, and at other times it has acquiesced. Any discernible pattern is too recent and too uneven to have formed a clear precedent that must be followed going forward.

Making some "good law" in the Senate on these matters is thus one of the most important things Senate leaders - especially Senator Specter -- can begin to accomplish in the Roberts proceedings. Whether or not Judge Roberts is confirmed - and based on what we know right now, he most likely will be - the Senate has its own institutional legacy to think about. And the rules the Senate develops and applies in the coming months may have a larger effect on actual outcomes when Presidents seek to fill the additional Court vacancies that are sure to arise before too long. Those who believe, as I do, that specific case queries are appropriate and important need to vigorously assert the point now, to help establish it for later - when it may matter even more.