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Truth Through Combat

Of Judicial Ethics and Confirmation Hearings

There’s been much talk over the last few days concerning the miserable spectacle that Supreme Court nomination hearings have become. The critique sometimes centers on the lack of substance at the hearings, at other times on the lack of sophistication on the part of questioners. The end result is that the nominee is able to get away without having said much concerning his judicial philosophy, much less without having to offer specifics as to future and recent cases.

To be sure, much of the reticence of the nominee is thought to be grounded in basic judicial ethics: judges should not form opinions on cases before they hear them, or at the very least they should not express such opinions. This prescription of judicial ethics–whether true or merely assumed to be true–gives some cover to the candidate, since he is able to claim that ethics prohibits him from answering certain questions and that his hands are tied: he cannot do any differently.

These facts make it difficult for critics of the relative unsubstantiality and depth of the hearings to make their case. After all, they can’t push to simply override judicial ethics in their quest to fulfill the demands of the public’s right to know. In their quest for substantive information, they must abide by the demands of those ethical prohibitions. One of the key questions, therefore, can be framed as follows: is it possible to have meaningful conversations about a nominee’s judicial philosophy while staying within the ethical boundaries?

Before addressing that question, it is necessary to determine just what the purpose of the hearings is. It is customary in the contemporary age of confirmation hearings for there to be a gap of at least two months between the nomination announcement and the beginning of the hearings. This means that the record of the nominee is carefully reviewed before the hearings begin. Now, there will presumably be informational needs that are not met by a review of the record. Therefore, at least one of the purposes of the hearings will be to fill in those informational gaps.

It has to be recognized, however, that these explanatory demands arise as a result of the combination of the nominee’s record and the political beliefs of the questioner. Senators are concerned about abortion, and to the extent that there is something in the nominee’s record that speaks to abortion but leaves certain questions unanswered, it is understandable that senators will seek to fill in the information gap through questioning.

This political consideration–that questions can arise at least partly out of political and not purely judicial concerns–means that questions will not always be about the philosophical structure of the law, but about its political and social impacts. It is the recognition of this tension that can best explain the peculiar kind of dance that these hearings have become for questioners and nominees.

The tension can be formulated as follows: senators are worried about the impact of the law far more than they are worried about the philosophy behind it; judges are worried about the nature of the law and its philosophical coherence, a concern that sometimes leaves pragmatic impacts out of the intellectual picture altogether.

When Samuel Alito had to consider the question (in Casey) of whether a law requiring spousal notification when a woman sought an abortion constituted an undue burden on a woman’s right ot secure an abortion, he concerned himself with the question of whether the arguments at trial had met the undue burden standard set out by Justice O’Connor in prior cases. For him, the exercise of considering the case was not about examining the practical impacts (though this was in fact one of the considerations of examining the definition of “undue burden”). Rather, the key concern was whether the specific law in question met the supposedly-rational standard set out in prior cases. In the spousal notification case, he concluded that the opponents of the law had not proven that such notification provided an undue burden. The conclusion was based on an application of O’Connor’s standards.

Fast-forward 14 years, and the same case is translated into the distinct political concerns of Sens. Kennedy, Biden, Specter, and others. In translating the case into the real world, however, the focus is no longer on the philosophical coherence of the decisions, but on the impact that the case decision had on women and abortion rights.

These two approaches are not easily translated into one another. If Alito’s reasoning had won the day in the Casey case, it would have meant that states were free to demand spousal notification. This possible effect of Alito’s reasoning was seized upon by abortion rights supporters, and particularly by those who believe that women should have relatively unfettered access to abortion (or at least unfettered from the influence of husbands). Such concerns, however, are about results rather than the nature of the law, its internal coherence. It’s one thing to structure the law in order to achieve a particular end, but quite another to structure it so that it is internally consistent. While judges will attempt to structure decisions in keeping with extant judicial reasoning, those with political interests are more worried about the impact such decisions might have on the real world. It is therefore entirely possible for a judge to proffer a decision that is wholly consistent with the law but which has some unpalatable impacts, at least so far as some political participants are concerned.

There is therefore a significant incongruity between the judge’s world and the political world. To the extent that senators even care about judicial philosophy, they do so typically in relation to the impact that such a philosophy will have on the issues that they and their constituents and political allies track. It is precisely such an outcome-oriented approach, however, that an impartial judge should be said to eschew. Therefore, to challenge a judge with the charge that his decisions have had negative impacts (on, say, women) is–at least so far as jurisprudence is concerned–a non-issue.

Of course, the impact on women of any law is not–at least so far as politics is concerned–a “non-issue.” This is what the above-mentioned tension amounts to in the course of confirmation hearings, therefore. And, it is in light of this tension that the matter of the questioning process of such hearings needs to be considered.

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