Appropriate and inappropriate - questions for Judge Roberts

"A judge or a candidate for election or appointment to judicial office shall not ... with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office."

- ABA Model Code of Judicial Conduct

The Senate Judiciary Committee's hearing on Judge John Roberts' nomination to be Chief Justice of the Supreme Court, in the final planning stages even as I write, is Congress's principal venue for fulfilling our constitutional responsibility to provide advice and consent regarding the fitness of judicial nominees.

Unfortunately, it looks increasingly like it will be the latest in a string of increasingly partisan, ideological grillings of nominees by Senators asking inappropriately specific questions about issues that may come before the court.

There's no question that Judge Roberts is fit and well suited for the job itself. The American Bar Association unanimously gave him its highest rating, and he was unanimously confirmed by the Senate only two years ago for the D.C. Circuit Court of Appeals. His record has been reviewed more extensively than any previous Supreme Court nominee.

But if all that suggests that the confirmation process should go smoothly, don't hold your breath. Liberal interest groups and their allies in the media are putting enormous pressure on Senators to defeat the nomination - or at least gum it up - because of Judge Roberts' generally conservative record.

Sen. Charles Schumer (D-NY) has publicly declared that "Every question is a legitimate question, period," and that he intends to ask how Roberts will rule on issues that the Supreme Court certainly will consider, including free speech, religious liberty, campaign finance, environmental law, and other political and legal questions. Likewise, Senator Ted Kennedy has demanded to know "whose side" Judge Roberts will favor, and "where he stands" on legal questions before the Supreme Court.

A seat on the Supreme Court is not a political office. And not every question that a Senator might think up is legitimate. Senate precedent, the rules of judicial ethics, and respect for the unique role of the federal judiciary in our society all call for some basic limits on the types of questions that should be asked of a judicial nominee. Qualification for office, after all, rests not on personal political positions, but rather on their ability to judge fairly under the law.

In fact, most constitutional scholars agree that it is manifestly not appropriate for a Senator to demand to know a nominee's views on specific issues likely to come before the court. This standard was endorsed four years ago by the late Lloyd Cutler, White House counsel to former Democratic Presidents Carter and Clinton, who testified before the Judiciary Committee that "Reviewers must refrain from asking candidates for particular pre-commitments about unresolved cases or issues that may come before them as judges... That is not only wrong as a matter of political science; it also serves to weaken public confidence in the courts."

In 1981, Sandra Day O'Connor declined to discuss her views on issues from education for illegal aliens to the principles of federalism. In 1993, Ruth Bader Ginsburg refused to answer some 55 of the questions that Senators posed to her, noting that "It would be wrong for me to ... preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide." In 1994, Stephen Breyer made essentially the same declaration.

Historically, this principle has been respected by members of the Senate. When then-Judiciary Committee Chairman Joe Biden (D-DE) presided over the confirmation hearing of future Justice Ginsburg, he advised her that "in my view, you should not answer a question of what your view will be on an issue that clearly is going to come before the Court." Senator Pat Leahy (D-VT), now ranking minority member of the Judiciary Committee, said during Justice O'Connor's confirmation hearing that "It is a most disturbing thing that members of the public or the members of the Senate would feel that she must commit herself as to how she will vote on cases that will come up in the future."

Some Senators have argued more recently that nominees perhaps should not discuss specific cases but that they can still talk about "issues." The American Bar Association Model Code of Judicial Conduct, [Eds. optional cited nearby,] makes no such distinctions. If a nominee is asked to commit himself to a particular stance on an issue that is likely to come before him as a judge, that nominee is ethically obligated to remain silent.

The authority granted by the Constitution to the Supreme Court truly is awe-inspiring - final review of laws approved by a majority of the democratically elected members of Congress and signed into law by the President. That kind of power makes sense only if the court is committed to applying and upholding the rule of law and our Constitution, and not subject to the transient sways of political moods.

Whether Judge Roberts will wield such power justly and fairly, while respecting the fact that the court's authority derives only from the law and the Constitution, is the core question that this committee should be asking of the nominee and itself.

Senator Kyl serves on the Senate Finance and Judiciary committees and chairs the Senate Republican Policy Committee.

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