It’s about as reasonable as having the police arrest a town council candidate for failing to show up at a candidate debate, but I sure wouldn’t put it past some Senators to try it.

That’s the silliest thing he says. The whole point is that courts speak only through their opinions. A judge writing an opinion is actually deciding a case. He’s not prejudging it, he’s JUDGING it.

And he’s also PREJUDGING the next case that raises the same issue, and the case after that, and the one after that, etc. That was Amar’s point, and mine in an earlier thread.

In so doing, he has the benefit of the context of specific facts, vigorous advocates, detailed briefs, and an opportunity to question the attorneys. None of this is present when asking a judge to make an off-the-cuff pronouncement that: the Constitution does/doesn’t protect “abortion” or “incest” or “gun ownership.”

Right, but those specific facts could be different from the specific facts in future cases. Justice Scalia’s off-the-cuff remarks about the idiocy of Michael Newdow’s case required him to recuse himself from that case, but will not require him to do so if the next case is brought by anyone else, even though the issue of law is exactly the same. Yet for some reason it’s not OK to ask a prospective Justice in the Senate what a sitting Justice says on his own in other settings?

Do you have any doubt that a judge who told the Senate, “I believe that the Constitution does not say anything about abortion, and that the States should be free to ban, regulate, or permit it as they see fit,” would be doomed? And yet, I believe that to be an absolutely and undeniably correct statement of what the Constitution says (and I think, from past exchanges, that you do too). Under the rule you propose, you and I would be absolutely disqualified from sitting on the Court (we’d probably be disqualified for other reasons, but having that view ought not to be one of them).

You’re probably right about that, unfortunately. However, I think the problem lies not with the ethics of asking judges what they think, but with idiot Senators who fail to understand their constitutional role in advice and consent. A Senator doing his proper job would, upon hearing that answer, say “OK, I’m not sure I agree with this guy, and I am sure my constituents don’t, but he’s got a defensible position and it’s obvious he knows his stuff.” On the other hand, if a prospective Justice admits in a hearing that he thinks there is a constitutional right to work as a prostitute as long as you don’t charge too much, he should be borked over a statement like that, not just because the Justices disagree with his substantive view, but because that view proves he’s an idiot.

As long as Senators do their improper job of confirming idiots who agree with their political views and borking geniuses who don’t, we’re doomed no matter what the rules are.

XRLQ has another post arguing that that Supreme Court nominees should be required to disclose their views about specific legal issues and the correctness of past court cases to the Senate as a requirement for…

“If it’s not right to ask a nominee for specific views about specific cases, there is little point in even having a hearing.”

This statement basically assumes what the argument is trying to prove; namely, that the point of the hearing is to learn how justices will rule. This is exactly wrong. Even Presidents avoid these questions, and Roberts has already said that Bush has not asked him his views on specific issues. The point of Senate confirmation hearing is simply to determine whether a nominee is qualified — which should mean honest and intelligent, and little more.

“If a nominee violates principles of judicial ethics by giving his views on a case that raises recurring issues, why wouldn’t the same be true for the sitting Justices themselves who – in written public opinions and dissents – have given their views in the very same case?”

That’s the silliest thing he says. The whole point is that courts speak only through their opinions. A judge writing an opinion is actually deciding a case. He’s not prejudging it, he’s JUDGING it. In so doing, he has the benefit of the context of specific facts, vigorous advocates, detailed briefs, and an opportunity to question the attorneys. None of this is present when asking a judge to make an off-the-cuff pronouncement that: the Constitution does/doesn’t protect “abortion” or “incest” or “gun ownership.”

“Perhaps. But just as a sitting Justice has a “job to do” in deciding cases, so too a nominee has a “job to do” in giving the Senate information about the kind of Justice he will be, so that the Senate can do its constitutionally assigned job of “advice and consent.” In any other setting, Americans would think it ridiculous that someone being interviewed for a position could decline to answer questions about how he would have handled real world situations in which past employees had done things that either pleased or displeased the ultimate employer (who in the case of the Supreme Court would be the American people).”

Here, Amar again seems to completely misunderstand the role of the judiciary. The founders expressly and emphatically intended the Courts to be the NONpolitical branch of our government. That doesn’t mean they don’t deal with political issues, but it’s supposed to mean that their decisions are insulated somewhat from political pressures. In interpreting the Constitution, judges are NOT supposed to care about popular opinion. Conservatives rightly lambaste liberal judges who cite opinion polls in reaching their decisions (decisions striking down the death penalty in various circumstances are a prime example). Amar, however, presumably would have no problem with this, however, because he’d see it as the judges just deferring to the will of their “Employers.”

Honestly, X, I’m really not enjoying this debate — I find it too depressing — so I’ll probably let you have the last word. There are few things in the world I care about more than the Constitution and its faithful interpretation according to its actual text by our judges. Unfortunately, that remains an incredibly uphill battle. Worse, the more we subject Supreme Court justices to popular political will, the further we will get from strict interpretations of the Constitution, and the less we will actually have a real Constitution in any meaningful sense. If we get to the point where it becomes acceptable to ask a justice, for example, “Do you believe the Constitution protects a right to an abortion” or “flag burning” or “gay marriage” or “the right to bear arms,” then it will quickly become nearly impossible for justices holding correct-but-unpopular views to get confirmed. Do you have any doubt that a judge who told the Senate, “I believe that the Constitution does not say anything about abortion, and that the States should be free to ban, regulate, or permit it as they see fit,” would be doomed? And yet, I believe that to be an absolutely and undeniably correct statement of what the Constitution says (and I think, from past exchanges, that you do too). Under the rule you propose, you and I would be absolutely disqualified from sitting on the Court (we’d probably be disqualified for other reasons, but having that view ought not to be one of them).

The bottom line is, at the risk of being called melodramatic, I believe that if your side of the debate wins out, then our Constitution is doomed. Unfortunately, since we have all of the left, and now good people on the right all advancing your view, I think the debate is all but over. Your side has won, and the Constitution has lost.

I just have to tell you that I enjoy each visit to your site. It’s becoming a regular stop.

Keep up the good work.

I just wish it wasn’t an issue. If the SCOTUS had the narrow scope I think the Founders envisioned, then the main questions would be, “do you have a law degree,” and “have you ever been a felon or disbarred?” The SCOTUS should not be such a big deal. Nominees should be rejected for things like killing rivals in duels, not because they may think that there is an invisible man in the sky who is interested in us or because they might have made a joke about pubic hair once.

This should be less of an issue than our jury nullification argument, but instead it is more important. I’ve decided to let the nullificaton argument lie, since we are past the point of convincing anyone who isn’t already, I’m comfortable with your last response, and hell, the status quo seems to be okay to both of us. It is like we are all sitting around eating free ice cream and debating whether or not it would be better dipped in chocolate or with rainbow sprinkles. No one seems to be genuinely unhappy about it as it is; we just have ways that we think it would be better.