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Erwin Chemerinsky,
Sunday, 01 January 2006 |
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[Editor's Note: Making Confirmation Hearings Meaningful is a Response to Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006, http://www.thepocketpart.org/2006/01/post_and_siegel.html.]
The hearings concerning the nomination of Judge Samuel Alito to the Supreme Court obviously are of enormous importance. Most significantly, Justice Sandra Day O’Connor was the decisive fifth vote in countless important areas, such as abortion, affirmative action, campaign finance, death penalty, federalism, and separation of church and state. Alito’s confirmation thus has the potential to dramatically change constitutional law. More subtly, the Alito hearings may go a long way to determining whether confirmation hearings serve any useful purpose or are just a sham. Professors Robert Post and Reva Siegel have offered a sensible and very desirable approach to what should be asked of nominees at confirmation hearings: How would they have voted in cases previously decided by the Supreme Court? This is a way that senators can learn the views of the nominee, without asking how the individual will vote on cases that will come before him or her as a Justice.
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Laurence H. Tribe,
Sunday, 01 January 2006 |
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[Editor's Note: Learning What From a Nominee's Views of Past Court Rulings? is a Response to Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006, http://www.thepocketpart.org/2006/01/post_and_siegel.html.]
Reva Siegel and Robert Post have argued convincingly that constitutional democracy could be advanced while preserving judicial independence by the practice of asking Supreme Court nominees how they would have ruled in already decided cases—and by treating a refusal to respond to such inquiry as reason to deny confirmation. Their essay elegantly dispatches the principal objections that have, seemingly more as a matter of habit than as a result of reflection, been advanced against this line of inquiry. Thus they quickly dispose of concerns that rest on an elementary confusion between saying what one would have done in the past and promising what one will do in the future. They argue that only a mock confusion could survive the now routine practice in which senators preface their questions with the assurance that they are not asking nominees to make any commitments about how they will vote on particular matters—other than, of course, the usual commitment to decide cases in accord with their best understanding of what the applicable law requires and to approach each case fairly and with an open mind.
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Steven Lubet,
Sunday, 01 January 2006 |
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[Editor's Note: Questioning Ethics s is a Response to Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006, http://www.thepocketpart.org/2006/01/post_and_siegel.html.]
Following Reva Siegel and Robert Post’s profound consideration of constitutional structure and democratic legitimacy, one hesitates to bring up something so pedestrian as the Code of Conduct for United States Judges. Still, legal ethics principles do have some bearing on the scope of Supreme Court confirmation testimony, and the Code is the most definitive statement we have about judicial ethics. As it turns out, the Code pretty much supports Siegel and Post’s position that judicial nominees may (and should) properly be asked to explain how they would have decided well-known Supreme Court cases.
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Randy E. Barnett,
Sunday, 01 January 2006 |
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[Editor's Note: Clauses Not Cases is a Response to Robert Post & Reva Siegel, Questioning Justice: Law and Politics in Judicial Confirmation Hearings, Yale L.J. (The Pocket Part), Jan. 2006, http://www.thepocketpart.org/2006/01/post_and_siegel.html.]
In Questioning Justice, Robert Post and Reva Siegel make three claims. First, that the Constitution authorizes the Senate to rest its judgement, in part, on the constitutional philosophy of nominees to the Supreme Court; second, that this practice is justified on grounds of democratic legitimacy; and third, that it is best implemented by asking nominees “to explain the grounds on which they would have voted in past decisions of the Supreme Court.” I agree entirely with the first and, to my mind, most important of these propositions. I disagree, however, that either the Constitution as a whole, or this particular practice is best justified on grounds of democratic legitimacy, or that their proposal is the best way to assess the philosophy of nominees.
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