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You are here: Home / Politics / Things That Just Shouldn’t Happen In Confirmation Hearings

Things That Just Shouldn’t Happen In Confirmation Hearings

by John Cole|  July 21, 20051:38 pm| 30 Comments

This post is in: Politics, Democratic Stupidity

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Good grief:

So maybe what we need to start doing during court of appeals confirmation hearings is to ask the following:

Sir or Ma’am, if you ever had the honor of being appointed to the Supreme Court, would you uphold Roe as the settled law of the land, or would you seek to overturn it?

Maybe that kind of question would break all kinds of unwritten Senate rules of decorum. (Or maybe it does get asked, though I would have expected we’d have seen Roberts’ answer by now.) Anyhow, I think this particular question is great because it forces nominees to go on record more clearly about what they’d do in the future – and if they refuse to answer, that’s equally telling.

Or maybe we could just give the nominee five or six cases that could be on the upcoming docket, give them six months to write up their opinion, submit them to NARAL, NOW, and the Democratic conference in the Senate, and if those meet approval, we hold a vote?

Or maybe we could just add a pledge to the SCOTUS oath of office to not overturn Roe or anything else Democrats really cherish? When a case comes before the court, we could poll the Democrats and their base, and then instruct the judges how we want them to vote.

This kind of blockheadedness and beliefs that we are putting political operatives on the court, rather than judges, is as stupid and offensive when it comes from the left as it is when it comes from the fundamentalists on the right. And, in fairness to those on the fundamentalist right, even they aren’t demanding certainty on Roberts position regarding Rove. The activist base of the Democrats are the only ones demanding not just answers to questions, but SPECIFIC answers to SPECIFIC questions. Questions that should not be asked, and answers they know will not nor should not be provided.

And, the left can ignore it all they want, but this IS how Ginsburg dealt with Roe and other controversial issues during her confirmation hearing:

Chairman Joseph Biden established a new practice, effective for “all Supreme Court nominees,” that the Senate Judiciary Committee would review the nominee’s FBI file only in confidential, closed session. Chairman Joseph Biden, Ginsburg Hrg. 116 (July 20, 1993). The Committee would also question the nominee about the file in confidential session, no matter how “serious” the subject. Chairman Joseph Biden, Ginsburg Hrg. 369 (July 23, 1993).

Ginsburg was not required to discuss her legal views on a host of issues, including:

Abortion
Civil rights laws
Gay rights
Gun-owners rights
Rights of the disabled
School vouchers
Separation of church and state
Free speech
Rights of Indian tribes

Ginsburg was not required to discuss her personal views on issues such as the death penalty.

I don’t think anyone should skate through the process, or is entitled to a life term, but you just don’t want to start this nonsense. Both parties should be allowed to examine his record and ask their questions. If there is anything in his record that gives a reason he should not be confirmed, fine. But you don’t get to play political games, and neither side gets to grill the nominee on ‘how he might decide’ issues that may in the future face the court. That is a recipe for disaster.

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30Comments

  1. 1.

    JG

    July 21, 2005 at 1:45 pm

    It may be wrong to ask a candidate hwo they would respond to such an issue but is it also wrong for the ruling party to pick a candidate based on how they would respond to an issue? If the republicans chose Roberts because he’s anti-Roe why can’t the dems try to find that out?

  2. 2.

    SomeCallMeTim

    July 21, 2005 at 1:54 pm

    This kind of blockheadedness and beliefs that we are putting political operatives on the court, rather than judges

    IANAL, but no half-decent lawyer I have ever met believes that judges are not ultimately politcal players concerned with policy. At the level of the S. Ct., the Justices aren’t dictated to by the threat of being overruled. And there are always ambiguities in the law; that’s why the parties pursue the cases. So when they decide between two potential decisions, both based on “valid” legal reasoning, they are making a policy/political decision.

    We ask that judges have different, less short-term, committments than politicians; we hope there is some consistent notion of “fidelity to the law” to which they are committed. But people who pretend that there are, in all cases, self-evident decisions to be “found” in the “law” are doing just that – pretending.

    If Ginsberg got away with not answering hypotheticals, then she got away with something. Having done a piss-poor job in the past is not a justification for doing a piss-poor job in the future.

  3. 3.

    Mike S

    July 21, 2005 at 1:54 pm

    According to TAPPED.

    Unfortunately, I’m having a little trouble finding all the relevant transcripts, but reading through the July 22, 1993, Judicary Committee hearing you can see that Ginsburg was quite forthcoming on a variety of issues. The position she maintained was that she would discuss things she’d written or said in the past but not her views on other, hypothetical issues.

    That did involve a Thomas-esque dodge on Orrin Hatch’s question of whether she thought the death penalty was unconstitutional (a dodge that’s a little hard to understand, because the answer has turned out to be “no,” which, presumably, was what Senator Hatch wanted to hear), but she gave full accounts of her views on a variety of other subjects. Crucially, she answered questions about issues on which she’d taken positions as an advocate for the ACLU and didn’t just use the “I was working for a client” dodge. Since Roberts’ career has overwhelmingly been spent in an advocacy capacity rather than a judicial or academic one, that’s going to be essential, and by the Ginsburg standard it’s all fair game.

  4. 4.

    Retief

    July 21, 2005 at 1:56 pm

    I’m with JG. What is the point of questioning him on anything other than his beliefs regarding the major issues that may in the future face the court? Is this from the same guy who told us that “it is pretty silly to pretend there is no litmus test for judges, when both sides clearly have them”?

  5. 5.

    KC

    July 21, 2005 at 2:01 pm

    John, I’m no huge fan of NARAL and was angry yesterday that they and some other groups jumped the gun and started protesting Roberts yesterday. However, I think a lot of people would not mind if he clarified how he felt about Roe and other privacy issues (I am not a huge fan of Rove but am very concerned about the extent to which the government can keep an eye on me without me knowing it.). I’m not sure the question you have quoted is the right formulation, but I’m sure the Christian Right would appreciate some certainty on the matter of Roe, etc., too. I think that the Bull Moose has a pretty good take on this issue.

  6. 6.

    ppGaz

    July 21, 2005 at 2:01 pm

    Here’s how the process works: The president nominates, and the Senate gets to do whatever it wants to do.

    Everything else said about this is just a waste of time.

    Roberts will be confirmed unless there is something we don’t know.

  7. 7.

    Justice Scalia

    July 21, 2005 at 2:06 pm

    GINSBURG DID ANSWER QUESTIONS RE HER VIEWS OF ROE V. WADE. Look it up. She was actually quite critical of the reasoning of Roe in the ’70s when she was a law professor and Sen. Feinstein asked her about this at length. Thanks for playing John, but you are just dead wrong on this one.

  8. 8.

    Mike S

    July 21, 2005 at 2:12 pm

    Roberts will be confirmed unless there is something we don’t know.

    If the same people who vetted Keric vetted Roberts, then that is a distinct possibility.

  9. 9.

    Sojourner

    July 21, 2005 at 2:16 pm

    Why shouldn’t the liberal interest groups express their concerns about this nominee?

    Why shouldn’t the nominee be asked questions about his judicial philosophy?

    Let’s face it. The standards changed when the SC elected to override the Constitutional process and select President Bush. They became a clear political entity at that point so the American people have a right to know as much about a lifetime appointment as possible.

  10. 10.

    Emily

    July 21, 2005 at 2:21 pm

    I honestly don’t understand your distaste for this kind of questioning. Presumably a senator should question a nominee to test their knowledge of law and the constitution. Would it be wrong for a senator to vote to accept or reject a nominee based on their general interpretation of the constitution? I don’t think so, which to me suggests that their interpretation of a specific issue would also be relevant.

    And I think it’s a little unfair to characterize Democrats as the only ones demanding such specific grilling of candidates. There were plenty of right wing groups crying for Bush to nominate someone who would overturn Roe.

    I’m not sure what disaster you foresee from all this. An ugly confirmation process? Worthy candidates bowing out to avoid having to state their opinions?

  11. 11.

    metalgrid

    July 21, 2005 at 2:23 pm

    John, you pretty much nailed it with the last comment – all the bickering and protesting is just stirring the base to keep em riled and for fundraising.

    Just think – if politics were much mellower, with less partisan extremism, how hard would it hit these organizations in their pocketbooks?

  12. 12.

    John Cole

    July 21, 2005 at 2:25 pm

    Pushing canards, all of you. I have no problem questions about a nominee’s judicial philosophy, and never once said anything about that being off limits. I did, however, specifically provide a quote of a type of question that should be left unanswered, and really shouldn’t be asked at all. Since you have chosen to ignore that quote, here it is again:

    Sir or Ma’am, if you ever had the honor of being appointed to the Supreme Court, would you uphold Roe as the settled law of the land, or would you seek to overturn it?

    That isn’t a question about judicial philosophy. That is a specific answer about a specific ruling.

  13. 13.

    Mike S

    July 21, 2005 at 2:38 pm

    I’ll give you that point John. My comment was more directed at the misinformation campaign from RedState. Not sure what’s going on over there but they are getting pretty hackish.

  14. 14.

    Steve

    July 21, 2005 at 2:40 pm

    Sure Roe is a specific ruling, and every single person who gets nominated to the Supreme Court knows what they would do about it. So why can’t we ask? To preserve the magical mystery of the judiciary and the illusion that each opinion springs of its own volition from the forehead of Zeus?

    I can sense that this myth that Ginsburg never testified about abortion will continue through the blogosphere, unimpeded by truth, as talking points tend to do. Here is what she actually testified to:

    [The right to an abortion] is something central to a woman’s life, to her dignity. It’s a decision that she must make for herself. And when government controls that decision for her, she’s being treated as less than a fully adult human responsible for her own choices.

    Now, if an answer like that is more acceptable to you than an answer about a specific case, then fine, let’s have an answer like that. But I think asking about specific precedents is fair game, and much different from asking about hypothetical future cases.

  15. 15.

    Kimmitt

    July 21, 2005 at 2:43 pm

    Yeah, the “Ginsberg didn’t talk about her views” meme is swift and deadly.

  16. 16.

    Sojourner

    July 21, 2005 at 2:56 pm

    That isn’t a question about judicial philosophy. That is a specific answer about a specific ruling.

    Why is this any different than asking if Brown v BoE is settled law? Roe is over 30 years old. It’s hardly an active case unless one doesn’t accept it as precedent.

    Are you really arguing that asking questions about old cases is off limits? I certainly hope not.

  17. 17.

    metalgrid

    July 21, 2005 at 3:08 pm

    You can be pretty sure that no sane political establishment Republican will appoint enough judges to overturn Roe/Wade if they value the future of their party. It’s a key issue that gets Republicans constantly re-elected due to its mobilizing power for a segment of their base while the politicians know full well that they will never have to act on their pro-life stance due to Roe/Wave holding them back. If Roe/Wade were overturned, it would:
    1. Provide Democrats with huge mobilization powers and
    2. Water down the pro-life faction since they don’t have overly pressing issues to attend to anymore.

    The Washington Democrats have to know this – and this is all just sabre rattling. All that really matters is for them to put on a good show – make it look good enough so both sides get well worked up over it. So, is that line of questioning good enough to get people riled up about it? It apparently gets our rather reasonable man John here, worked up, so it must work pretty well.

    One does wonder when the pro-life side will eventually see the ploy and call the Republicans on it – although I’m sure their leaders are well aware of it, but they reap too much profit from it to inform their base of it.

  18. 18.

    Sojourner

    July 21, 2005 at 3:13 pm

    You can be pretty sure that no sane political establishment Republican will appoint enough judges to overturn Roe/Wade if they value the future of their party.

    This administration has shown itself perfectly capable of doing crazy things. In fact, some argue that it is their specialty.

  19. 19.

    metalgrid

    July 21, 2005 at 3:17 pm


    Sojourner Says:
    This administration has shown itself perfectly capable of doing crazy things. In fact, some argue that it is their specialty.

    Oh come now, they have done plenty of things in their self-interest purpoted to be in the best interests of the American people, but they haven’t really done ‘crazy things’ per se.

  20. 20.

    John S.

    July 21, 2005 at 3:25 pm

    Oh come now, they have done plenty of things in their self-interest purpoted to be in the best interests of the American people, but they haven’t really done ‘crazy things’ per se.

    I don’t know about that. As we saw yesterday from the early translation of Iraq’s Constitution, expecting Iraq to magically turn into a Jeffersonian Democracy sounds like a pretty “crazy thing” to me.

    It reminds me of the underpants gnomes on South Park. They had this great plan to take over the world:

    Step 1: Collect all the underpants.
    Step 3: Take over the world.

    That’s pretty crazy, too.

  21. 21.

    Bernard Yomtov

    July 21, 2005 at 3:27 pm

    If you can convince me that the President shouldn’t and doesn’t consider the nominee’s political views you can make a case that the Senate shouldn’t either. Look, the right has been saying, “We won the election. We can nominate someone on our side.” Fine. But that’s an admission that the nomination is a political act. Spare me the nonsense about “we just want judges who interpret the Constitution according to blah blah blah.”

    All the talk of “judicial philosophy” is about 90% BS intended to provide a veneer of impartiality to support or criticism of decisions one likes or dislikes.

    Besides, what’s the big deal here? Are we pretending that Roberts doesn’t know the arguments for and against Roe, that some hitherto unconsidered point might be raised in court? Are we pretending he doesn’t have an opinion on the matter?

    I think this whole ritual is silly and, more important, uncalled for. It seems to me that the public has a right to know the thinking of nominees. Politicians have been making hay on the issue of judicial nominations for years. OK. Then let’s get the real issues out there instead of all the sanctimonious talk of “judicial philosophy.”

  22. 22.

    metalgrid

    July 21, 2005 at 3:40 pm


    I don’t know about that. As we saw yesterday from the early translation of Iraq’s Constitution, expecting Iraq to magically turn into a Jeffersonian Democracy sounds like a pretty “crazy thing” to me.

    You need to stop taking the political establishment at face value. Bringing democracy to Iraq had more to do with evening a certain score, bringing better national security to Saudi Arabia and Israel and cementing other friendships and business partnerships. I don’t see anything crazy about that. In fact, it seems very well calculated but with some botch ups which were bound to happen.

  23. 23.

    ppGaz

    July 21, 2005 at 3:47 pm

    Roberts will be confirmed unless there is something we don’t know.

    If the same people who vetted Keric vetted Roberts, then that is a distinct possibility.

    If that turns up, call me.

    Meanwhile …. what I said.

  24. 24.

    p.lukasiak

    July 21, 2005 at 4:41 pm

    That isn’t a question about judicial philosophy. That is a specific answer about a specific ruling.

    Its actually just a bad question, because Justices aren’t supposed to “seek” the opportunity to do anything other than interpret law.

    There are perfectly valid ways to ask the Rove v. Wade question, like:

    Do you believe that the Constitution provides competent adults with the right to control their own reproductive choices, or do you believe that governments can control when and if someone reproduces?

    Do you believe that the Constitution recognizes any rights of human zygotes? embryos? fetuses? If yes, where?

    Do you believe that the right to not be deprived of rights and property without due process includes the right to control what one does with one’s own body?

    ***************

    apparently the anti-women group that Roberts wife belongs to has submitted various “friend of the court” briefs opposing Rove v. Wade. The question that I want to ask is whether Roberts wrote, or reviewed, these briefs….

  25. 25.

    Bob

    July 21, 2005 at 5:25 pm

    Senators can ask whatever they like. I just hope they don’t ask if he’s a Yankee or Red Sox fan. And please limit the gratuitous bullshit if you have nothing to add to whether or not the guy should be confirmed.

  26. 26.

    jg

    July 21, 2005 at 5:36 pm

    Yankees suck!!!

    Sorry, its a reflex. :)

  27. 27.

    John S.

    July 21, 2005 at 8:16 pm

    You need to stop taking the political establishment at face value.

    You need to be less authoritarian in your choice of your words, since nobody has appointed you the Grand High Inquisitor on what people should or shouldn’t do (tongue in cheek).

  28. 28.

    Kermit

    July 22, 2005 at 3:35 am

    I think a fair question would be:

    “At what point do you belive that an embryo becomes a full citizen with all the rights, priveledges, and protections that citizenship receives?”

    That pretty much sums it up for me. Depending on the answer, his rulings could be fairly well predicted.

  29. 29.

    metalgrid

    July 22, 2005 at 10:14 am


    John S. Says:
    You need to be less authoritarian in your choice of your words, since nobody has appointed you the Grand High Inquisitor on what people should or shouldn’t do (tongue in cheek).

    Well, until I get appointed Grand High Inquisitor, it’s only just words. Not like words ever hurt anyone, right?

  30. 30.

    Mike

    July 27, 2005 at 3:41 pm

    “If Ginsberg got away with not answering hypotheticals, then she got away with something. Having done a piss-poor job in the past is not a justification for doing a piss-poor job in the future.”

    Yes. You say that now.
    The precedent has been set. Screw what the liberal groups “want”.

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