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Thursday, September 15, 2005

A confirmation, in which nothing is confirmed

There really is an element of farce to the convention that judicial nominees should refrain from commenting on legal issues they may have to rule on if confirmed. It should be obvious that a life-tenured judge will not be held to any views he expressed in a confirmation hearing, but the Senate might actually be able to perform a meaningful "advise and consent" function if it had more to go on than platitudes and assorted ephemera the nominee wrote twenty-plus years ago.

I call this pattern a "convention" because I don't see any legal mandate for it. It's based on a political calculus, one that could be changed if the Senate had more strong figures and fewer posturing nonentities. When a nominee dodges a direct question with some formulation beginning "it would not be appropriate for me," he is relying, ultimately, on nothing more than the courtesy of the Judiciary Committee. There is no privilege against giving sworn, non-self-incriminating testimony before a Senate committee. The current makeup of the Senate and general notions of comity among branches of government make it impossible to imagine the committee threatening a nominee with contempt charges, but it's worth remembering that all these frustrated Senators are on some level consenting to the denuded answers they get from nominees.

Nominees explicitly or implicitly rely on the Code of Conduct for United States Judges, which, interestingly, says noting about confirmation hearings or testimony at them, although it "is designed to provide guidance to judges and nominees for judicial office." Maybe the strongest basis for limiting testimony to bland generalities is the statement that a judge should "act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary. Whether that precludes answering questions about whole areas of law, or answering hypothetical questions, is not at all clear and of course is left to each individual's conscience, etc. Certainly this provision does not demand that a judge hide his distinctive views when not on the bench (witness Justice Scalia) or permit him to avoid answering direct questions under oath. If nominees who are sitting judges on other federal courts feel especially constrained by the Code of Conduct, perhaps the convention should be for them to resign their seats when nominated to a higher court. A nominee could be given strong assurances that he would be renominated and reconfirmed for the lower court seat if his current confirmation bid failed.

None of this will ever happen, of course, but it's interesting to think about.


posted at 11:51 AM

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