Why are judicial nominations controversial

International Relations Religion Education Sports. Search form Search. Connecting History. Hot off the Press. History Talk. Printer Friendly Version. Justice John Rutledge Justice John Rutledge , a vocal defender of slavery who would later be saved from drowning by two slaves. Chief Justice Roger B. Robert Bork President Ronald Reagan with his nominee to the Supreme Court, Robert Bork , who was famously rejected by the Senate for his controversial past and opinions. Harriet Miers President George W.

RSS Feed. Email alerts. Read Article. Featured Book Review. Catholic Pirates and Greek Merchants. Dozens of others are awaiting votes in the Senate. In addition to having a Senate controlled by his own party, his court nominees need only a simple majority — rather than 60 votes — to advance to the floor, following rules changes in and The rising discord in the federal judicial nominations process has been catalogued in other ways.

For example, the amount of time that judicial nominees have waited for a confirmation vote in the Senate has grown significantly. In times of uncertainty, good decisions demand good data. Please support our research with a financial contribution.

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Live TV. This Day In History. History Vault. Ideally, "the questioning of nominees at confirmation hearings enables [S]enators to obtain useful and indeed necessary information about nominees. Madison , the foundational case establishing the power of courts to review laws under the Constitution. At the same time, however, even though many wish that federal judicial nominees were more forthcoming during their confirmation hearings, there is nonetheless "relative agreement among nominees, senators, and commentators" alike that "there must be some limitations on a potential Justice's answers" during the confirmation process.

In response to concerns regarding the proper conduct of judges and judicial candidates, 22 judges and bar associations have promulgated a variety of "canons" of judicial ethics—that is, self-enforcing, aspirational norms intended to promote the independence and integrity of the judiciary. However, scholars, nominees, and Members of Congress have not reached a consensus regarding the extent to which ethical canons otherwise constrain a nominee from answering other types of questions at his or her Senate confirmation hearing.

Beyond the canons of judicial ethics, historical practice reveals the constitutional norms that have influenced what questions a federal judicial nominee should or must refuse to answer. This report examines the relevant considerations with respect to the questioning of judicial nominees. The report begins by discussing applicable canons of judicial ethics that may discourage judicial nominees from answering certain questions posed by Members of Congress.

Supreme Court. The federal judiciary, state courts, state legislatures, and various bar associations have all developed codes of ethical standards intended to guide the conduct of judges and judicial candidates. As the following sections explain, however, canons of judicial ethics are generally self-enforcing, with the result that there is virtually no case law and only minimal commentary analyzing how these codes of judicial conduct apply in the specific context of confirmation hearings for appointed federal judges.

Further complicating matters is the fact that not all of the canons discussed below apply equally to all nominees. Perhaps for these reasons, neither judicial nominees nor Members of Congress nor commentators have reached a consensus regarding the precise range of responses that are permissible under the relevant canons of judicial conduct.

Some nominees have suggested that ethical considerations prohibit judicial candidates from making virtually any statement about any legal issue that could conceivably come before the federal judiciary. Supreme Court, many though not all of whom tend to be sitting federal judges.

Significantly, the Code of Conduct is not a binding set of laws per se, but is rather a set of "aspirational rules" by which federal judges should strive to abide. It is uncontroversial that the Code of Conduct at least permits a judicial nominee to appear at his or her confirmation hearing for questioning. Canon 3 A 6 of the Code of Conduct provides that, with certain exceptions unrelated to judicial confirmation hearings, 52 a "judge should not make public comment on the merits of a matter pending or impending in any court.

For one, neither Canon 3 A 6 nor the cases and commentary interpreting it specify how broadly the term "impending in any court" sweeps. However, at least one scholar has taken the opposite position—that a matter is "impending" within the meaning of Canon 3 A 6 only if there is "a discrete controversy[] with identifiable facts" and "specific litigants" that "is poised for litigation, though not actually filed. Wade , even though an abortion case may well come before that nominee in the future.

Apart from whether a nominee's comments would concern an "impending" case, it is also unclear what kinds of responses would amount to a public comment "on the merits.

Nevertheless, the extent to which the ethical principles embodied in Model Code constrain federal judicial nominees remains somewhat unclear because, as the name suggests, the Model Code is merely a " model template[] of legal and judicial ethics. Instead, the ABA offers its Code as a model for jurisdictions to adopt, and those that do are responsible for creating a mechanism to enforce it. First, the Model Code prohibits judges and judicial candidates from making "pledges, promises, or commitments" regarding "cases, controversies, or issues that are likely to come before the court.

Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure. Significantly, the commentary to the Model Code squarely states that the prohibition against "pledges, promises, or commitments" applies when a judicial candidate is "communicating directly with an appointing or confirming authority" 80 —a term defined to include "the United States Senate when sitting to confirm or reject presidential nominations of federal judges.

As courts interpreting analogous state ethical rules have explained, "[w]hether a statement is a pledge, promise or commitment is objectively [discernible].

It requires affirmative assurance of a particular action. It is a predetermination of the resolution of a case or issue. There do not appear to be any judicial cases or advisory opinions clarifying what types of statements qualify as "pledges, promises, and commitments" in the specific context of a confirmation hearing for an appointed federal judgeship. However, because the Model Code purports to apply equally to candidates for appointed and elected judgeships alike, 85 cases analyzing the "pledges, promises, and commitments" clause in the context of campaigns for elected judgeships are illustrative.

In particular, cases discussing whether a nominee for an elected judgeship may answer surveys from advocacy groups seeking to discern the nominee's views on controversial legal issues can illuminate whether the "pledges, promises, and commitments" rule might likewise constrain a federal judicial nominee from answering similar questions during his or her Senate confirmation hearing.

Advocacy groups commonly submit "questionnaires to candidates for election or retention" for state judgeships asking candidates to state their views on disputed legal questions, such as "whether they agree with Roe v.

Wade , which held many forms of abortion legislation unconstitutional. To that end, state courts and disciplinary bodies most commonly impose discipline under the "pledges, promises, and commitments" clause when a judicial candidate makes campaign promises to favor or disfavor certain classes of litigants in their rulings—such as pledges to rule against criminal defendants and in favor of children, crime victims, and police officers.

Indeed, the drafting history of the Model Code states the following:. Although candidates for appointive judicial office are by definition not submitting themselves to the voting public at large, they are trying to influence a much smaller "electorate". It is just as improper in these small-scale "campaigns" to make pledges and promises that are inconsistent with the impartial performance of judicial duties as it is in campaign for elected office, with town meetings and television advertisements.

The commentary to the Model Code emphasizes that "pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited" so long as the judicial candidate also "acknowledge[s] the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views.

The rule precludes only those statements of intention that single out a party or class of litigants for special treatment, be it favorable or unfavorable, or convey that the candidate will behave in a manner inconsistent with the faithful and impartial performance of judicial duties.

The foregoing analysis suggests that federal judicial nominees will not violate the "pledges, promises, or commitments" rule if they answer questions regarding their personal opinions on controversial legal or political issues during their confirmation hearing—as long as they do not promise to rule in a particular fashion in future cases presenting those issues.

Critically, however, as explained in the following subsection, a comment by a judicial nominee could conceivably qualify as an impermissible "public statement" under the Model Code even if it does not qualify as an impermissible "pledge, promise, or commitment. With certain exceptions not relevant here, 99 the Model Code also prohibits judges and judicial candidates alike from making "any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending[] or impending[] in any court.

The Model Code defines an "impending" matter to include any "matter that is imminent or expected to occur in the near future. The annotations to the Model Code also state that "[o]nce a case is fully resolved and no longer pending, a judge is free to engage in any extrajudicial comments" about the case.

Neither the case law nor the annotations to the Model Code provide significant guidance regarding what types of public statements made during the federal confirmation process may impermissibly "affect the outcome or impair the fairness" of a pending or impending matter within the meaning of the rule.

Public hearings are not the only occasion where a federal judicial nominee could conceivably make statements that implicate ethical norms or rules. In addition to publicly appearing before the Senate for questioning, it is common for federal judicial nominees to meet privately with Members for courtesy visits in advance of their confirmation hearings. Beyond the need to comply with specific ethical norms, another reason that some nominees may avoid answering certain questions during their confirmation hearings is the need to refrain from making public statements that would mandate their disqualification from future cases.

The "need to avoid frequent disqualification"—and, by extension, a judicial nominee's need to avoid making public statements that would warrant his or her recusal in future cases—is arguably particularly pressing "in the case of Supreme Court justices. The question is whether a reasonable and informed observer would question the judge's impartiality" as a result of the judge's conduct.

Section is generally "intended to be self-enforcing, meaning that the recusal issue is supposed to be raised first by the judge and not the parties.

Section a is similar to the Code of Conduct discussed above to the extent that both strive to promote impartiality in the federal judiciary. Instead, the most common scenario in which a judge's public comments disqualify that judge from adjudicating a case is when the judge makes statements to the media about a case over which he or she is presently presiding.

In re African-American Slave Descendants Litigation is one of the few Section a cases that directly discuss when, if ever, a federal judge must disqualify himself or herself on the basis of statements he or she made during the judicial confirmation process.

Under different circumstances, however, historical practice supports the notion that a judge's prior public comments about disputed and controversial legal issues may warrant that judge's recusal from a future case. In , for instance, Justice Scalia "gave a public speech. The "distinction between a federal judge's expression of personal philosophy. Several judges have suggested that non-case-specific comments about jurisprudential philosophy are less likely to mandate recusal in future cases than questions about specific cases or issues that the judge may be called upon to adjudicate in the future.

As explained above, not only are the rules governing judicial ethics largely self-enforcing, they do not always provide clear answers regarding which types of conduct are permissible or impermissible. For instance, during the hearing on whether to confirm then-Associate Justice William Rehnquist to the position of Chief Justice, the nominee initially declined to respond to a question from Senator Arlen Specter asking whether he thought that Congress could strip the Supreme Court of the ability to hear constitutional challenges.

The general standard that many nominees invoke when responding to Senate questioning has come to be known as the "Ginsburg Rule. Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide.

Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.

Judges in our system are bound to decide concrete cases, not abstract issues. Each case comes to court based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.

Although the refusal to stake out a position on matters that are likely to come before the Court has become known as the Ginsburg Rule, the principle precedes Justice Ginsburg's hearing. This section of the report examines nominations to the Supreme Court and describes the norms that have developed surrounding senatorial questioning and nominees' responses.

This review focuses on Supreme Court confirmation hearings rather than lower courts, because Supreme Court nominations have traditionally involved a more comprehensive examination of the nominee. Finally, it explores trends in the types of questions that nominees are willing to answer.

In considering this final issue, however, it is important to keep in mind that due to the wide variety of senatorial questioning and the inherently personal nature of a candidate's decision to answer a particular question, there will almost always be exceptions to the general tendencies described below.

Nominees to the Supreme Court today go through a confirmation hearing before the Senate Judiciary Committee. Scholars and jurists have pointed to the failed confirmation of Judge Robert Bork, in , as a watershed moment in the development of the modern confirmation hearing.

Others have raised, as relevant here, two challenges to this conventional wisdom. First, some have argued that "Bork's nomination did not fail because he answered too many questions; it failed because he gave the wrong answers. Looking to past confirmation hearings, nominees to the Supreme Court have cited three related but distinct constitutional concerns to justify not answering certain types of questions. Specifically, Article III of the Constitution provides that judges may hear "cases" and "controversies.

The second constitutional concern is grounded in the Constitution's due process guarantees, and specifically in the assurance that cases will be resolved by unbiased judges. The final constitutional justification for declining to respond to certain questions is closely related to this concern about due process, but is grounded in separation-of-powers concerns.

As discussed above, Article III is understood to establish an independent judiciary insulated from political pressures. The constitutional concerns motivating judicial nominees to decline to answer certain questions, however, must be counterbalanced against the constitutional responsibility of the Senate to give advice and consent to presidential nominees.

Supreme Court nominees have generally declined to stake out positions on issues or factual circumstances that are likely to come before the Court in future cases, resulting in a practice referred to by some as the Ginsburg Rule. Because nominees are unlikely to answer direct questions regarding their views on particular issues, to attempt to determine how a nominee might resolve cases if appointed to the Supreme Court, Senators have instead asked about a nominee's.

This section of the report explores each of these categories of questions in more depth, but as a general matter, nominees are more willing to talk about issues or cases that they believe are "settled" or "fundamental. One exchange from the hearing on then-Assistant Attorney General Rehnquist's confirmation to the Court as an Associate Justice illustrates this dynamic.

Justice Whittaker's views on equal protection and due process? In response, the nominee said that he had not "changed [his] mind that the Senate ought to be interested in a nominee's views," but said that he had gained "an increasing sympathy for the problem of the nominee to respond to very legitimate questions from the Senators without in some way giving the appearance of prejudging issues that might come before him.

Other nominees may stake out clear "lines" regarding the types of questions they are willing to answer and refuse to transgress those lines even with respect to settled issues. Then-Judge Ginsburg made a similar statement in her confirmation hearing when she declined to discuss a certain case involving an executive branch policy that she believed might be adopted again by a future Administration.

I sense that I am in the position of a skier at the top of that hill, because you are asking me how I would have voted in Rust v. Another member of this committee would like to know how I might vote in that case or another one. I have resisted descending that slope, because once you ask me about this case, then you will ask me about another case that is over and done, and another case. So I believe I must draw the line at the cases I have decided. To take another example, then-Judge Antonin Scalia refused to state his opinion on any prior Supreme Court decisions, declining even to discuss Marbury v.

Madison —then the Senators "do not need an answer, because your judgment of my record and my reasonableness and my moderation will lead you to conclude, heck, it is so obvious, anybody that we think is not a nutty-nutty would have to come out that way. Nominees seem most willing to discuss their general philosophies of law, including their approaches to constitutional and statutory interpretation. Thus, for example, then-Judge Clarence Thomas was asked repeatedly whether he believed in natural law as a principle of constitutional interpretation, to which he responded in the negative.

Judicial candidates may also discuss their general approach to evaluating precedent and stare decisis, the doctrine governing when courts should adhere to previously decided cases.

For example, Senator Arlen Specter engaged in a lengthy discussion with then-Judge John Roberts about stare decisis in the context of the two primary Supreme Court cases establishing a right to an abortion. Supreme Court nominees are generally willing to discuss their own prior work, including both prior judicial opinions and extra-judicial statements.

Wade —because she, unlike Judge Roberts, "had written extensively on that subject and she thought that her writings were fair game for discussion. Sometimes nominees use the hearing to disclaim prior statements or explain that they would not adhere to a particular view as a Supreme Court Justice. Notwithstanding the fact that nominees will usually discuss their previously expressed views, most Supreme Court candidates are reluctant to discuss their personal opinions on various issues.

However, nominees' personal lives have, at times, became a central subject in their confirmation hearings. Senators generally recognize that they should not ask nominees about pending cases, but will sometimes ask nominees about previously decided cases. Senators may hope that nominees' views on past cases reveal their beliefs on issues that are still contested.

As mentioned above, then-Judge Scalia refused as a general rule to give his opinion on any previously decided cases of the Supreme Court, going so far as to refuse to state whether he agreed with Marbury v. Madison , a case that he nonetheless acknowledged in the hearing as "fundamental" and one he had previously cited in his capacity as a federal appellate judge. As with other issues, nominees' willingness to give their opinions on whether a prior case was correctly decided may turn on how likely they believe the issue presented in that case is to recur.

For example, then-Solicitor General Kagan was asked for her "view of" Bush v. Gore , the decision of the Supreme Court that reversed the Florida Supreme Court's order requiring a recount of ballots in the presidential election. The correctness or incorrectness of some cases appears to be so well established—at least in the minds of some nominees—that some Supreme Court candidates are willing to affirm or disavow those cases without discussing how likely an issue is to recur.

Such cases include not only Marbury v. Madison , but also cases in the "anti-canon," such as Dred Scott v. Sanford , Plessy v. Ferguson , and Korematsu v. United States , that almost all modern lawyers agree were wrongly decided. Because nominees are more likely to discuss cases that are generally considered to be well-established law, nominees' willingness to embrace certain cases may vary over time.

Questions about the Supreme Court's decision in Brown v. Board of Education , the case that functionally overturned Plessy v.

Ferguson and announced that "separate educational facilities" for children of different races "are inherently unequal," provide one example of how attitudes may shift over time. In the confirmation hearing of Justice Harlan and the hearing for Justice Potter Stewart, some Senators announced their disagreement with the Court's decision and attempted to discern whether these nominees agreed with the Court's result or reasoning.

But as attitudes towards Brown shifted, so did its treatment in confirmation hearings. It is interpretation of the Constitution just as was contemplated by John Marshall in Marbury versus Madison.

As mentioned, if a prior case is not considered settled law and if a nominee thinks issues from that case are likely to recur, the nominee may be unwilling to discuss the case at all. Heller , in which the Supreme Court recognized an individual right to keep and carry arms, Justice Kagan merely described the holding of the case and said that it was "settled law.

Finally, nominees are sometimes asked questions relating to judicial procedure, and are often willing to speak generally on these matters. Supreme Court candidates have also discussed the issues of judicial misconduct. In this vein, a number of nominees have been questioned about the process to impeach judges. Finally, Senators have sometimes asked Supreme Court nominees whether they would recuse themselves under certain circumstances.