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September 12, 2005
Asked and Answered
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Jed Shugerman teaches legal history and politics at Harvard Law School. |
Are Supreme Court hearings a farce or democracy at its finest?
The portrayal of recent confirmation hearings as a farcical game of cat-and-mouse is unfair. True, the first handful of nominees after Judge Robert Bork’s defeat played dodgeball, not hardball. Justice Clarence Thomas claimed never to have discussed Roe v. Wade with anyone, though the decision was announced while he was in law school. However, the two most recent nominees, Ruth Bader Ginsburg and Stephen Breyer, were much more forthcoming.
| Asked & Answered The politics in the hearing room |
Senator John Cornyn and other conservatives assert that Ginsburg refused to answer the Judiciary Committee's questions 55 times, citing the Code of Judicial Ethics' rule against committing oneself to a position on a matter likely to be before the Court. They suggest that the "Ginsburg Rule" is a nominee's right to refuse to answer any direct question on a legal issue. In fact, Ginsburg's rule was that, if she previously had written on the matter, she answered related questions openly. She and Breyer did not "commit" themselves to particular positions, but they directly answered questions on abortion and many other specific doctrinal questions. Ginsburg was more evasive on the death penalty, which was not an area of her academic expertise.
A convenient distinction? Probably. But the point is that in the two most recent hearings, direct questions on doctrine were fair game. If such questions are out-of-bounds, then let's just pack up and go home, and give presidents a blank check on judicial appointments. It's simply not that helpful to hear abstract queries about stare decisis or "penumbras" posed in a dozen different ways.
For more opinion, see Shugerman's op-ed in today's Boston Globe, where he argues that Senators should filibuster any judicial nominee who refuses to answer their questions directly and candidly.
Posted at September 12, 2005 09:27 AM