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September 15, 2005
Playing With Loaded Dice
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Richard Epstein
is James Parker Hall Distinguished Service Professor of Law and director of the law and economics program at the University of Chicago. |
As the confirmation hearings conclude, a few moments of exasperation reveal all that is wrong with the current process. Take Senator Biden’s unhappiness at not getting a straight answer from John Roberts on his view of the right to die: “Without any knowledge of your understanding of the law, because you will not share it with us, we are rolling the diced with you, Judge.”
In a sense that is exactly what we want Sen. Biden and every other senator to do. The insistence that Biden can have on this issue is not unique to him. Notwithstanding the royal we, there are other senators who will rest easy only if they hear an answer that is dead opposite to that which Biden might wish to hear. A full discussion of the philosophical or constitutional issues could take extensive time to unpack, because even those people who are in favor of the right to die, are unhappy with various forms of assisted suicide and active euthanasia, which are currently illegal. Yet it takes a certain amount of ingenuity to draw the relevant distinctions between those actions and the withdrawal or cessation of treatment at the request of the dying patient or his or her guardian.
In other circumstances, I would like to hear what Roberts has to say, but not here. Sen. Biden should be in the same position as the rest of us. We should all be prepared to roll the dice, that is to take a chance on the nominee, because any other position is wholly inconsistent with our basic notions of judicial independence. There is a real danger to ask for an explanation of a nominee’s position on an issue when what is really sought is an implicit declaration that you will come out this or that way on in some future case. All candidates should keep mum on these matters.
Which leads to the larger question: Why have the cross-examination at all if the obvious answers are known in advance and all else is rightly platitude? Perhaps the hearings are needed for public education. But it is steep tuition to have to listen to various senators pontificate at length. No wonder these hearings are relegated to C-SPAN3.
Posted at September 15, 2005 04:30 PM