D.C. Dispatch August 2, 2005

Candor at a confirmation hearing could corrupt the integrity and independence of a new justice.

Why Roberts Shouldn't Tell Us What He Thinks

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Do you believe that either the United States Congress or the states can regulate the sexual behavior of individuals within the privacy of their home?

Do you believe that Roe v. Wade (1973) was correctly decided?

Can the Clean Air Act pre-empt local emissions regulations, as the Court held last year?

These are among the seven pages of written questions that Sen. Charles Schumer, D-N.Y., has presented to Supreme Court nominee John G. Roberts Jr. They are good questions, going to the heart of important issues.

Should Roberts give direct answers? If he declines or dodges, as he did in his 2003 confirmation hearing for a federal judgeship, would that be good reason for Democrats to oppose him?

I have previously suggested that the answer to both questions is yes. But I have changed my mind, with a little help from my friends. And on reflection, I would suggest that Democrats be careful what they wish for:

If they ever succeed in forcing nominees to detail their views, it will not only corrupt the integrity and independence of new justices. It will also, perhaps, open the way for presidents to pack the Court with people who have virtually pledged their votes on a long list of issues in secret, prenomination interviews.

This is not to deny that a powerful case can be made for insisting on direct answers to questions like Schumer's.

The ethical obligation to avoid prejudging possible future cases is less sweeping than has been suggested by previous nominees, including all nine of the current justices. Even accepting the widespread assumption that nominees should not telegraph future votes by opining on ultimate questions, such as whether Roe should be overruled, there is no ethical rule against addressing less dispositive questions, such as whether Roe was correctly decided. The core ethical obligation is to have no bias for or against particular litigants, not to have (or to disclose) no views about issues. That's why nobody sees any ethical problem with justices' participating in cases that raise the same issues on which they had commented before being nominated or have ruled since being confirmed.

That was the view of the Supreme Court itself, in a 2002 decision striking down a Minnesota ethical canon barring candidates for elective judgeship from "announcing their views on disputed legal and political issues." Citing candidates' free-speech rights, Justice Antonin Scalia held that "it is virtually impossible to find a judge who does not have preconceptions about the law, [and] pretending otherwise to preserve the 'appearance' of that type of impartiality can hardly be a compelling state interest."

While previous nominees have gotten away with "no comments" on questions that they preferred not to answer, some chose to explain their published views (as did Robert Bork, on many issues), especially when this enabled them to say what the questioners wanted to hear (as did Ruth Bader Ginsburg, by strongly endorsing abortion rights while no-commenting other issues).

Forcing nominees like Roberts to disclose their views to win confirmation would reduce the perverse incentive that presidents now have to bypass potentially outstanding nominees whose views are already in the public record.

The Senate, and the voters, have an enormous interest in knowing what Roberts thinks about the vast array of issues on which he would help set national policy. The Supreme Court is no ordinary appeals court. The justices have long seen their primary job as formulating broad rules of law to govern us all, not doing justice for individual litigants. They cannot possibly hear more than a tiny fraction of the cases that come to them. In dismissing 99 percent of all appeals, they leave many injustices unrectified. And in choosing the few cases that they do hear, the justices look less for individual injustices to rectify than for vehicles to clarify the law or make new law.

In short, to a large extent the justices act, and almost have to act, as a superlegislature. Used in the usual pejorative sense, that word connotes usurping the powers of elected legislatures by inventing rights with no basis in the Constitution. But even the honest work of enforcing clear constitutional commands necessarily takes the form of decreeing rules of law for the nation.

So it seems a bit like the tail wagging the dog to subordinate the public's interest in knowing what Roberts thinks to an exaggerated fear of any appearance of prejudgment. Shouldn't a nominee seeking a lifetime seat on our superlegislature come clean in the only proxy for an election that he will ever face?

"You are making a virtue out of a vice," responds Laurence Silberman, a senior federal appeals court judge. The very conservative, unusually principled Silberman is almost despondent about the unwillingness of the justices—conservatives as well as liberals—to confine themselves to the modest role (and the healthy discipline) of deciding individual cases.

Rather than surrendering to the inevitability of the Court's continuing to act like a superlegislature, says Silberman, we should appoint justices truly committed to restoring a less grandiose, more modest view of the judicial role—justices who will avoid announcing new rules of law or changing old ones except insofar as is strictly necessary to resolve individual cases fairly, honestly, consistently, and according to law.

(That, by the way, seems to be the approach of John Roberts, who has so far exuded no crusading zeal as a judge to score points for conservative causes.)

More to the point here, stresses Silberman, the gravest threat posed by pressuring nominees to answer long lists of questions like Schumer's is to judicial integrity and independence, not to the appearance of impartiality.

This threat is magnified by the role of interest-group politics in the confirmation process. Imagine an outstanding, mainstream nominee who happens to believe that Roe was wrongly decided; that the Second Amendment creates no individual right to bear arms; and that news reporters should enjoy no legal privilege to protect confidential sources in criminal investigations.

The second and third views would be consistent with Supreme Court case law. And seven of the nine current justices have said or implied that Roe was wrong, at least in the sense that it went too far. So have a great many scholars.

But any nominee who forthrightly admitted to having similar views could be defeated based on those three answers alone, at least in a close confirmation battle. The Roe response could cost the votes of lots of Democrats, by the time the abortion-rights lobby was done; the Second Amendment response could cost the votes of lots of Republicans, by the time the gun lobby was done; the reporter-privilege response could bring lots of hostile editorials.

In such an atmosphere, pressure for nominees to detail their views would pose five grave dangers, especially when the majority party's margin becomes smaller than it is now:

First, candor could be fatal. Second, nominees—like politicians making campaign promises—would be powerfully tempted to misrepresent their inner thoughts. Third, this dynamic would favor people of malleable integrity. Fourth, once on the Court, they would feel pressure to conform to the insincere views expressed in their testimony.

Worst of all, imagine what would go on in the White House. As of now, the president and his people avoid asking potential nominees detailed questions not only because of ethical scruples but also because they know that senators would demand full disclosure of all questions and answers; would denounce the White House for exacting and the nominee for providing "litmus-test" answers; and would properly expect similarly detailed answers to their own questions.

The converse is also true. To the extent that senators succeed in forcing nominees to detail their views publicly, the White House will feel freer to grill potential nominees secretly. Does the president want a nominee who has implicitly committed to vote in certain ways on abortion, gay rights, religion, and—most important of all—the president's own claims of virtually unlimited war powers? He could direct his staff to grill would-be nominees until the staffers get the right answers.

Of course, in order to win confirmation, the nominee would have to give very different sworn testimony to the Senate. So presumably, the White House would not keep transcripts. But once on the Court, those who had successfully slimed their way through this gantlet would know that their sponsors and friends in the White House were watching.

Would such new justices adhere to their secret commitments, or to their public ones? Would they welsh? Do we want honest, independent jurists? Or do we want political hacks?

Stuart Taylor Jr. is a senior writer and columnist for National Journal and a contributing editor at Newsweek. This column appears every week in National Journal, a weekly magazine covering politics and government published in Washington, D.C.