Imagine if during last fall’s presidential debates the candidates had refused to answer specific questions about what they would do about various controversial issues, but instead insisted on giving only general answers regarding their “political philosophies.”
It goes without saying that the public wouldn’t tolerate such behavior, nor would anyone in the political establishment or the media defend it. Why, then, are so many people willing to let nominees for the Supreme Court get away with similar behavior? Indeed, we’re being told that a nominee’s refusal to answer questions about how he or she would rule on controversial legal issues is a good thing.
For example, University of Chicago law professor David Currie was asked to comment on the behavior of recent nominees who refused to answer questions from senators about their positions regarding issues that could come before the Supreme Court. (For example, Clarence Thomas wouldn’t say whether he believed there was a constitutional right to abortion, while Ruth Bader Ginsburg avoided answering almost any substantive questions during her hearings.)
“People shouldn’t have to commit to positions,” Currie replied. “It destroys the independence of the judiciary.”
How would being expected to state a position on controversial legal questions destroy the independence of life-tenured judges? According to Currie, this disaster could occur because, if a justice changed his or her mind about an issue after being presented with the facts of a particular case, the justice might then be subjected to unfair criticism.
Whenever I hear statements like this _ and Currie’s views on this matter are widely shared among legal academics _ I wonder if my profession is stuck in some sort of Through the Looking Glass fantasy world, in which all the normal rules of political life are suspended.
Let’s suppose that someone being considered for one of our most powerful political offices is the sort of person who would fail to do what he or she thought was right out of fear of being subjected to unfair criticism. Shouldn’t any serious suspicion that this was the case automatically disqualify this person from consideration for such an office?
And beyond that, it’s nonsensical to appoint people to the Supreme Court without requiring them to answer such basic questions as whether they believe certain controversial decisions were rightly decided in the first instance, and, if not, whether they should be reversed now.
The nomination of John Roberts to the Supreme Court raises this issue in a particularly pointed way. What are Roberts’ views on the constitutionality of abortion restrictions, or affirmative action, or federal laws overriding state statutes on issues like medical marijuana or assisted suicide? These are just a few of the issues in regard to which Roberts has never made any public statement.
The answer is, no one knows _ or, if they do know, they’re not saying. Yet many of my legal academic colleagues take the view that those charged with determining whether Roberts should be made one of the most powerful persons in the country for the next three decades or even longer shouldn’t even inquire into such matters.
Instead, they say, senators should limit themselves to asking Roberts questions about his “judicial philosophy.” But nothing could be more banal than the answers such questions evoke, since those answers are guaranteed to consist of meaningless platitudes.
Roberts is almost certainly going to be confirmed, even though neither the president who nominated him nor the Senate that will vote on him will be able to do much more than guess at what his real views are in regard to the most controversial legal matters of our time. This remarkable fact should disturb us much more than it apparently does.
(Paul Campos is a law professor at the University of Colorado and can be reached at Paul.Campos(at)Colorado.edu.)