Posted on 07/20/2005 4:47:42 PM PDT by RWR8189
Both the federal courts and the United States Senate rely extensively on precedent for the conduct of their current affairs. Whether or not a particular practice is embodied in any formal rule, both the courts and the Senate have regarded continuity of past practice as an essential part of orderly and fair government and have followed their precedents absent some compelling reason to change.
As any person who follows the news knows, the Senate has recently found itself embroiled in controversies about how senators and nominees to the federal bench should behave in posing and answering questions during the judicial confirmation process. In the hope that past practice will provide a guidepost for resolving these controversies, this paper reviews the confirmation hearings conducted on Ruth Bader Ginsburg’s nomination to the Supreme Court and addresses the precedent set during those hearings for the conduct of judicial nominees. In particular, the memorandum addresses the extent to which judicial nominees may decline to answer questions posed by senators during the confirmation process, and the extent to which generalized answers are appropriate in response to both specific and general questions.
This paper sets forth some illustrative quotations in discussing the interplay between Justice Ginsburg and the members of the Senate during her confirmation. These quotations are merely examples of the conduct that they represent. Additional examples could be given for the categories discussed. I.
Senator Joseph Biden was Chairman of the Senate Judiciary Committee when Justice Ginsburg was nominated to the Supreme Court in 1993. On July 15, 1993, shortly after Justice Ginsburg’s nomination became known to the Senate, Senator Biden identified the standards he expected senators and judicial nominees to follow in the confirmation process. Importantly, Senator Biden noted that the Senate’s hearings, including the question-and-answer period between senators and the nominee, should not be a "dramatic spectacle" or a "trial." Senator Biden also emphasized that the nominee’s appearance before the Senate should not be invested with a make-or-break importance, as the Senate’s hearings are only one part of the confirmation process (particularly in instances when nominees have a long-standing public record that illustrates their qualifications and views).
In contrast to the recent idea that a nominee’s appearance and answers before the Senate are an essential part of the confirmation process, Senator Biden noted that the practice of inviting Supreme Court nominees to appear before the Senate is relatively novel. Senator Biden said:
[I]t is useful to recall that testimony before the Judicial Committee by Supreme Court nominees is a new phenomenon.
Appearance before the committee became a standard part of the confirmation process only in the year 1955, with John Marshall Harlan. No Supreme Court nominee testified personally until 1925, when Attorney General Harlan Fisk Stone responded to allegations of prosecutorial misconduct in the investigation of a Senator.
The next five nominees did not testify at all, and it was not until 1938 that Stanley Reed appeared. The next year, Felix Frankfurter testified, but William O. Douglas waited outside the committee hearing room without ever being called in as a witness. And in 1949, Sherman Minton was called to testify at the hearing on his nomination to the Court. He refused to appear on the grounds that his record as a Senator and as appellate judge spoke for itself. He refused to come. He was called before the committee in 1949. He refused to come and he was confirmed by the Senate.2
Senator Biden’s comments are important because they demonstrate that the current gladiatorial process of attacking a nominee before the television cameras is not a deeply rooted part of American history and tradition. Additionally, whatever reticence current nominees may show in participating in the Senate’s hearings, that reluctance will likely not be as significant as Justice Minton’s outright refusal to appear when called.
Senator Biden also commented on the extent to which Supreme Court nominees should answer questions about their potential future rulings. Senator Biden said "the public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference … between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee’s independence and impartiality, and questions on judicial methods and philosophy. The former can undermine the dispassionate and unprejudiced judgment we expect the nominee to exercise as a Justice. But the latter are essential and contribute critically to our public dialog."3
Senator Biden’s comments should be helpful to current senators and nominees as they reflect the considered judgment of a Democratic chairman of the Senate Judiciary Committee and explain the standards he used for conducting hearings on a Democratic nomination. II.
In answering questions before the Judiciary Committee, Justice Ginsburg added her own twist to Senator Biden’s standard for nominees. While Senator Biden had said that a nominee should decline to answer questions about how she would decide a specific case, which suggests that only prospective cases are off-limits, Justice Ginsburg declined to answer questions
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Side note: Judge Roberts himself is a member of the Federalist society.
I heard on Fox that he was not a member of the Federalist Society.
They're wrong.
Law.com and various other media have already confirmed that he is a member and has been one for a long time.
I just searched on the net and you are correct. I must have misheard. I was thrown off tonight because I made the mistake of checking out MSNBC and Kristin Van der Heuvel was on. What is a "Huevel" anyway?
Where's this guy been? Everybody knows that there are two sets of rules, one for Democrats and one for Republicans.
Don't forget, they can also say, "Oh I don't recall". "Gee, I can't remember". (Thanks Hillary)
I'm waiting for the other shoe to drop when the democratic senators find out that Judge Roberts wife is a pro-life activists and was in a leadership position at "Feminists for life".
It was said that Roberts should invoke the Ginsburg rule to not answer certain questions.
Roberts should bring up Ginsburg not answering similar questions every time the Democrats try to make an issue of it.
That aside, I also hope that Ann Coulter was WRONG about her view that Roberts wouldn't work out like conservatives think.
Geez, Biden said she, didn't he? Obviously these rules only apply to women. Authentic woman such as RBG. Not to men, or to inauthentic women named Edith.
I am hoping that when they see "Feminists For Life" they will think she wants to be a feminist forever and not pro-life.
She is wound WAY TOO tight. She needs to 1) have a laugh, 2) get laid, and 3) get a life. Then, and only then, will she be even the least bit tolerable.
Man, I thought that these liberal chicks were supposed to be comfortable with themselves and the world around them. Seems like the exact opposite...they can do nothing but bitch and moan about EVERY little thing and it is always (ALWAYS) someone else's fault.
I can't imagine what it would be like to hang out with a kook woman like that for more than 5 seconds. By second #6, I would want to slit my own wrists.
I think she will be proven wrong on this one although I generally regard her work as gospel. I feel that Bush 2 has better insights into people than the Bush 1 version....
although there was that Putin thing...hmmmmm
Oh well, it's a crap shoot anyway you pick 'em.
I bet ya she is hot in the sack. I'd do her. She is looking a little "worn" since I last saw her, but so am I.
What is sauce for the ugly duckling is sauce for the gander.
Glad I could be of help.
Congressman Billybob
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
Well, it all depends on which Roberts Bush got to interview.
If Roberts is a real person, Bush probably got a great feel for whether of not he is a conservative who would follow the Constitution to interpret the law, not make up law.
Yet again, this is a swift trial lawyer who is 400% sharp and might be capable of putting on a professional show for anyone, and could be at worst a liberal, though I don't think so and agree with you.
With the little kids, I think Mrs. Roberts must have contact with the wives and mothers of other people and I think by way of Mrs. Roberts women friends, who Mr. Roberts is has been well exposed IMO to President Bush.
Any truth to the rumor that Roberts has a tattoo on his butt that says get rid of the illegals?
Congressman Billybob
(Denny Crane: "Sometimes you can only look for answers from God and failing that... and Fox News".)
On one hand, she got away without answering the questions. On the other hand, she turned out to be the most extreme liberal justice ever on the Supreme Court, and one of the most extreme judicial officers ever to take the bench in the US. So you might ask the question, "Can we afford another Ginsburg, and if not, what can we do to prevent one?"
Some of us might argue that we should make the nominees answer the questions. In this case, I think that we've simply got no choice but to trust the President's judgment.
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