Reticence Is Right

About the Author

Bruce Fein served as associate deputy attorney general under President Ronald Reagan and helped Sandra Day O'Connor prepare for her Senate confirmation hearings in 1981. Fein practices law in Washington, D.C.

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"We cannot ask a man what he would do. And if we did, and he should answer, we should despise him for it." That was the retort of President Abraham Lincoln to demands that he appoint a chief justice of the United States who would be "safe" on slavery.

Every president has followed Lincoln's instruction. None has sought voting pledges or previews from nominees in honoring the Constitution's separation of powers in both word and spirit. In answering her Senate questionnaire, Supreme Court nominee Harriet Miers declared that President George W. Bush had not discussed any specific case or issue with her, and that she had not volunteered views as to how she might rule as a justice.

Miers' silence is irreproachable. Although I oppose Miers' confirmation for other reasons, the independence of the Supreme Court and its check against executive abuses would be crippled if the president were permitted to extract commitments from nominees to further a political agenda.

President Lincoln's observations apply with equal force to the Senate in vetting Supreme Court candidates. Senators should not ask for views on whether particular cases were rightly or wrongly decided or deserve overruling. But if they do, Miers and all future nominees should refuse to answer. Such reticence has been the general (but not invariable) custom for many reasons.

Justice requires the appearance of justice. That appearance is tarnished when a justice has opined on specific constitutional issues under oath to the Senate Judiciary Committee and those issues later present themselves to the Supreme Court: for example, whether racial or ethnic preferences absent proof of past discrimination are ever permissible under the Equal Protection Clause. The justice would be morally bound to stick with the opinions expressed to the Judiciary Committee and to turn a deaf ear to contrary arguments marshaled by the litigants and fellow justices, no matter how persuasive. Case-specific or issue-specific answers given to the committee make authentic impartiality as a justice chimerical.

In contrast, impartiality remains uncompromised when justices sit in cases raising claims they have previously rejected. Their earlier views were reached after hearing arguments from litigants and exchanging views with other justices. They were not the product of currying favor with the Judiciary Committee.

Moreover, justices feel no moral obligation to follow their past voting behavior when reason or experience expose what they perceive as error. They are vastly more persuadable to abandon past views than would be a justice who has given a sworn oath to the Senate. Justice Sandra Day O'Connor, for instance, voted for hyper-exacting scrutiny of racial preferences in Adarand Constructors v. Pena (1995), yet winked at the same discrimination in Grutter v. Bollinger (2003).

Nominees isolated before the Judiciary Committee are ill prepared to be definitive on thorny constitutional issues. General propositions do not decide concrete cases. And concrete cases are illuminated by adverse litigants with a mastery of the facts and history of the dispute. Further, justices profit enormously from the collective wisdom of their colleagues.

Separation of powers would also be imperiled if nominees answered case-specific or issue-specific questions. The Founding Fathers worried most about an impetuous and grasping legislature. The Bill of Rights was ratified primarily to enable the Supreme Court to arrest anticipated congressional abuses, an anticipation soon vindicated with the odious Alien and Sedition Acts of 1798.

If the Senate were able to elicit from nominees their views on specific cases, confirmation would be reserved for candidates who promised to rubber-stamp assertions of congressional power. Indeed, Senate Judiciary Committee Chairman Arlen Specter and several of his colleagues sought without result to extract answers from Chief Justice John Roberts that would have endorsed virtually unlimited congressional authority under the Commerce Clause and section 5 of the 14th Amendment. The nominee properly kept to generalities.

As Alexander Hamilton amplified in Federalist Paper 76, the Senate's confirmation role was intended to thwart incompetence, cronyism or corruption. Accordingly, Judiciary Committee members should ask nominees whether they have carefully read the 100 most significant constitutional precedents to insure they will contribute more than a potted plant to the Supreme Court's deliberations.

Committee members should also inquire of a candidate's judicial philosophy or standards of constitutional interpretation. One school of thought champions the original meaning of the Constitution, whereas a rival theory celebrates constitutional penumbras, emanations, evolving standards of decency, and the meaning of the universe. The Senate and the public are entitled to know a nominee's method of constitutional reasoning and to confirm or reject accordingly to influence the general but not the specific direction of the Supreme Court. Some outside influence — but not too much — is what the separation of powers envisions.

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