Lost in the frenzy surrounding the nomination to replace Supreme Court Justice Sandra Day O’Connor is a largely ignored, yet vitally important, issue: How specific should Members of the Senate Judiciary Committee be when they question a Supreme Court nominee about his or her judicial and constitutional philosophy — and what kind of answers should a nominee provide?
For the Senate, only an approach based on philosophical, as opposed to case-based, particularity adequately resolves the inevitable tension between the Senate’s constitutional responsibility to make an informed judgment in the exercise of “advise and consent” and the nominee’s need to preserve judicial integrity and independence. At the same time, a nominee must be willing to engage in a dynamic discussion of his or her philosophy in order for Senators to render a judgment.
Three models of scope of questioning have emerged during the past 70 years.
At one end of the spectrum is pinpoint specificity, with Senators asking laser-like questions designed to elicit commitments about specific cases, many of which were among the most controversial of the day. This approach dangerously threatens the independence of the judiciary, undermines the separation of powers and prejudices future litigants before the court. Such questions also don’t tell us much, since they do not focus on legal reasoning, interpretation and methodology.
At the other end of the spectrum is an approach in which the nominee adopts an equally unacceptable alternative — call it extreme caution, with the nominee taking a narrow and absolutist approach to the hearings, thus improperly foreclosing all questioning of his or her judicial philosophy. This approach impedes the Senate’s exercise of its constitutional responsibilities and leaves the public at large with a severe information gap.
Indeed, it transforms “judicial independence” from shield to sword, thereby creating an appointment process that, contrary to the language of the Constitution itself, is independent of the Senate. The late Sen. Sam Ervin (D-N.C.) put it well when he said that nominees who adopt the “no answer” position “cannot tell us anything about the future … [and] they cannot tell us anything about the past, which means they cannot tell us anything.”
The third approach is the correct one, in which Senators seek philosophical particularity and the nominee engages in a real dialogue on the critical issues of the day — a national conversation, if you will. The hearings on the nomination of Robert Bork exemplified this model, despite repeated attempts by revisionists dissatisfied with the result to recast them.
Bork came to the committee with a voluminous written and spoken record. During his 30 hours of testimony, much of the questioning probed Bork’s reasoning, the sources he would consult in resolving a constitutional question and his understanding of the meaning of specific amendments to the Constitution. The subjects discussed included the nominee’s approach to precedent, his theory of original intent, the Constitution’s unenumerated rights, civil rights, the First Amendment and executive power. Based on the totality of Bork’s judicial philosophy, as set forth in his record and testimony, a majority of the committee sent his nomination to the Senate floor with a negative recommendation.
Questioning during the Bork hearings had real value because much of it pierced popular slogans and instead focused on what the nominee truly thought about the Constitution and its role in our society. This requires asking the nominee not merely about fundamental principles, but also about the application of those principles.
Asking a nominee about “liberty” — which all nominees naturally profess to support — is far less important that asking him or her about the application of the Liberty Clause of the 14th Amendment to marital privacy and reproductive freedom. Querying whether a nominee believes judges “should interpret the law or legislate from the bench” yields less than questions regarding the interpretation of the Religion Clauses of the First Amendment. Probing a nominee’s philosophy toward the Takings Clause of the Fifth Amendment and the scope of state power under the 10th Amendment are equally important, and valid, areas of questioning.
Simply put, the committee cannot discern how a nominee might approach constitutional questions without asking the nominee about the key principles that undergird the Constitution and the manner in which those principles would be applied. In this fashion, the committee can gain an understanding of how and why a nominee has reached his or her current view. Far from imposing a litmus test, this represents an effort to understand the nominee’s approach to constitutional issues.
The Senate Judiciary Committee will soon hold hearings on a nominee to the Supreme Court. Committee members have a solemn constitutional duty to exercise their advice and consent responsibilities, and should take advantage of the infrequent opportunity presented to have a national conversation about the issues that cut to the very core of our government. Incisive questioning by committee members and a willingness on the part of the nominee to discuss judicial philosophy would benefit each of them and the nation as a whole.
Jeffrey J. Peck is a partner with the lobbying firm Johnson, Madigan, Peck, Boland and Stewart Inc. He served as general counsel and staff director of the Senate Judiciary Committee from 1987 to 1992, a period that included the nominations of Robert Bork, Anthony Kennedy, David Souter and Clarence Thomas to the Supreme Court.