FOR IMMEDIATE RELEASE: July 14, 2005 QUESTIONING JUDICIAL NOMINEES: A DUTY NOT A PRIVILEGE; SCHUMER OUTLINES SPECIFIC QUESTIONS SENATORS SHOULD ASK A SUPREME COURT NOMINEE Major Speech to the Center for American Progress and American Constitution Society Stems from Schumer Op-Ed in 2001 Today U.S. Senator Charles E. Schumer, in a speech to the Center for
American Progress and American Constitution Society, outlined the specific
questions that can and should be asked of Supreme Court nominees in their
confirmation hearings. Schumer, the ranking Democrat on the Judiciary
Subcommittee on the Courts, stating that questioning judicial nominees
is a duty and not a privilege, first suggested that a nominee’s
views and philosophy should be known in an opinion piece in the New York
Times in 2001. The specific questions are below as is a complete text
of the speech: I would like to thank the Center for American Progress and the American Constitution Society for sponsoring this important event, at this important time, on this important issue. As speculation swirls about who might replace Sandra Day O’Connor, it is important that we are taking this morning to address a fundamental issue, no matter how many vacancies we may face on the Court. And that fundamental issue is this – once we have a nominee (or nominees) testifying before the Senate Judiciary Committee, what kinds of questions can be put to that nominee and what kinds of answers should the nominee give? I have long believed that federal court candidates – who serve for life – should explain their judicial philosophy and their method of legal reasoning. They should be prepared to explain their views of the Constitution,
of decided cases, of federalism, and a host of other issues relevant to
that lifetime post. So, this morning, ladies and gentlemen, let me address two points. First, why it is good and proper to ask a nominee detailed questions about his or her views of the Constitution and substantive issues. And second, what questions I personally would ask any nominee to the Supreme Court. First, why should Senators ask – and why should nominees answer – searching questions about judicial philosophy? Why? Because it is the single most important thing we can learn about a Justice who will serve for life. The Supreme Court has a profound impact on people’s lives, and the influence of a single Justice can far outlast that of a President. With just the stroke of the pen, a Justice can affect – for good or ill – millions of people’s lives in dozens of fundamental ways: -One Supreme Court decision can mean the difference between equality
of opportunity and second-class citizenship for generations. Just look
at Brown v. Board of Education. Because of the momentousness of all that the high Court considers, we simply cannot and should not avoid delving into judicial philosophy. As I discussed in a 2001 Op Ed in the New York Times, there is no question that all good lawyers and judges interpret the law, that there is some subjectivity in that interpretation, and that one’s values and philosophy influence that process. Professor Cass Sunstein did an interesting study and found – somewhat unsurprisingly – that in ideologically contested cases, appointees tended to vote more conservatively or more liberally depending on the party of the president who appointed them. For all these reasons, this process should not be a rote and robotic review of a resume. There are many people who boast impressive resumes and academic credentials, but who would misserve the American people from the bench, because of their extremist views, misguided judicial philosophy, or disrespect for the Constitution. A good resume is important, but not dispositive. It is a necessary, but certainly not sufficient, prerequisite for serving in a lifetime post on the most powerful court in the land. The American people care less about whether a nominee went to Utah Law School or Harvard Law School and more about how he or she will affect their lives. Indeed, close consideration of a Supreme Court nominee’s judicial philosophy, ideology, and views on substantive issues has a rich and long tradition in American history – even before nominees routinely appeared in person before a Judiciary Committee to answer questions. During the 1950's and early 1960's, there were not a lot of questions
about nominees’ views and ideology, in part because there was more
good will and consensus in the country. But from the beginning of the
Republic, everyone has understood that these kinds of questions were vitally
important. And – this is notable – his opposition was led by Alexander Hamilton, who was the originator of the Advice and Consent procedure. Over the course of American history, fully 20 percent of all nominees to the high court have never been seated – in many cases because of their ideology and judicial philosophy. Ideological examination has been a feature of the nomination process forever – but often that ideological questioning goes on furtively behind closed doors by members of the party that proposed the nominee. Justice O’Connor, for example, was questioned by the Reagan White House at length on her views – in private. As reported in the New York Times in 1981, in a closed-door session, she was asked specific questions by Reagan officials – including, among other things, “whom she felt she was closest to on the Court philosophically [and] her opinions on the exclusionary rule, under which evidence that is obtained unconstitutionally is deemed inadmissible in court.” And that kind of closed-door questioning appears not to be a thing of the past. As reported this week, Senator Sam Brownback, a member of the Judiciary Committee, has asked to meet with Attorney General Alberto Gonzales, who has been mentioned as a possible Supreme Court nominee. Asked whether Gonzales would be a good nominee, Brownback replied, “I need to talk with him about his view of the Constitution to tell. That’s what I hope to do this week.” If a nominee’s ideology, judicial philosophy, constitutional views are central considerations in a President’s decision to nominate (as they inevitably are) and if such questioning is going on in private, I dare say that the American people have an absolute right to have those questions answered publicly. Now, let me just review the breadth of support – from all quarters – for the proposition that questions about judicial philosophy and decided cases are fair game for nominees to the highest court in the land. Let me begin with the letter being released today in conjunction with this event – a letter signed by 100 leading legal scholars, which really hits the nail on the head. Let me quote a passage from that letter: “[I]t is critical that the Senate, in giving its Advice and Consent, undertake a searching inquiry to assure itself that judicial nominees meet the highest standards of character and integrity. . . and that their views are within the constitutional mainstream.” That is exactly right. But these 100 scholars are not alone. If people cared to look, there is support from many quarters for the proposition that questioning nominees about their views and ideology is vitally important: 1. Arlen Specter, the Chairman of the Senate Judiciary Committee, agrees
with this proposition. This is what he wrote in his 2000 book, Passion
for Truth: 2. Senator John Cornyn – himself mentioned as a potential Supreme Court nominee and also a member of the Judiciary Committee – also agrees with this proposition. When pressed on television last week, Senator Cornyn conceded: “I think it's an appropriate question to ask what [nominees’] views are on cases that have been decided and judicial opinions that have been written.” 3. Senator Orrin Hatch – former Chairman of the Judiciary Committee – also has agreed with this proposition because he has understood that judicial philosophy is so important: “[D]ifferences in judicial philosophy have real consequences for the safety of Americans in their streets, homes, and workplaces.” (1996) Senator Hatch has himself also repeatedly asked nominees about their views. He pressed Ruth Bader Ginsburg on, among other things, her views on the death penalty. [Senate Judiciary Cmte. Hearing, 7/22/93] 4. On Tuesday, even President Bush endorsed this proposition when he talked about the importance of philosophy in picking a Supreme Court nominee: “I am going to be deliberate in the process because I want the
American people to know that, when I finally make a decision, it’s
going to be one based upon a lot of research and a lot of thought about
the character of the person, the integrity of the person, the ability
of the person to do the job, and the philosophy of the person.” Listen to Justice Scalia in 2002 quoting Justice Rehnquist in 1972: “Proof that a Justice's mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” In all, this is an impressive group in support of this simple proposition. Logic and legal precedent confirm what Senators, scholars, and Supreme Court Justices all agree upon – that questions about judicial philosophy are legitimate and proper. Ideology matters, judicial philosophy matters, and questions about them are not only appropriate, but obligatory. And yet, despite tradition, despite Supreme Court precedent, despite logic and reason, there are those who insist that such questioning is inappropriate, unnecessary, unseemly, and even unethical. But, given the importance of the issue and the profound influence of the Supreme Court, I think the American people join me in scratching their heads at those who still question whether we should ask these kinds of questions. Every time I look at the arguments, I become more and more perplexed. Do opponents of questioning about ideology really even believe their own arguments? Perhaps those who are seeking to avoid asking these key questions are doing so because they fear – or know – that the answers the nominee gives may be so out of touch with the views and values of the American people that the nominee – if his or her views were public – might never be approved. Legendary law professor and civil rights champion Charles Black wrote in the Yale Law Journal 35 years ago words that would resonate today. He wrote eloquently and persuasively about the importance of knowing a nominee’s philosophy: “If it is a philosophy the Senator thinks will make a judge whose service on the Bench will hurt the country, then the Senator can do right only by treating this judgment of his, unencumbered by deference to the President’s, as a satisfactory basis in itself for a negative vote. I have seen as yet nothing textual, nothing structural, nothing prudential, nothing historical, that tells against this view. Will someone please enlighten me?” Thirty-five years later, I could ask the same question. Will someone please enlighten me? Some have argued that questioning a nominee about his or her views of the Constitution or about decided cases compels prejudgment about a future case. They say that somehow asking a nominee about an old case or their judicial philosophy means they will not be able to be impartial if a similar issue ever comes up in their court in the future. They even cite the canons of judicial ethics in support of this argument. But I am not talking about asking a nominee to tell us in advance how they are going to rule on a specific fact situation or issue in a potential upcoming case. - One should not ask a question specifically about Enron, because there
are particular facts and parties involved, but one can certainly ask a
question about a nominee’s views on corporate responsibility and
the proper role of the federal Government in enforcing it. A dozen leading legal ethicists confirmed in a letter to me last week that there is nothing inappropriate with Senators’ asking questions about Constitutional issues. Relying on Justice Scalia’s opinion in White, these professors wrote: “It is hardly possible that a person could achieve nomination for appointment to the United States Supreme Court and yet have no opinions about the significant constitutional issues and cases of our day. And the fact that the nominee does have such opinions and voices them will not undermine impartiality or the appearance of impartiality.” So, I wonder about the motives of the opponents of this type of questioning. What is their rationale? What is their reasoning? It is getting clearer and clearer: some want a nominee so out of the mainstream that they want to hide the candidate’s views from the American people. They are afraid that if a nominee provided his or her honest views of the Constitution and of the way it should be interpreted, they would never be confirmed. Ladies and gentlemen, that is inimical to our tradition and incompatible with our principles. What I support, what my fellow Senators support, and what these 100 scholars support, is a dignified and respectful hearing process – open, fair, thorough, full, and above-board: -a hearing process dominated by direct questioning about substantive
Constitutional issues, rather than nitpicking about personal peccadilloes; To do this, Senate questioners have certain ethical obligations – to treat the nominee with respect and to avoid the kind of gotcha questions that debase the proceedings. On the other hand, the nominee also has certain obligations – to answer questions fully and honestly, without prevarication or equivocation; to provide relevant opinions and writings to the committee, without delay; and to Miguel Estrada, nominated by President Bush to the D.C. Circuit Court of Appeals, was defeated because he was neither forthright in his answers, nor forthcoming with his writings. He may have been a brilliant legal mind, with a stellar resume, but his stubborn evasion and dissembling about his judicial philosophy and his legal views spelled disaster for his nomination. Let me now set forth some of the questions that I personally would ask a Supreme Court nominee. This is neither a comprehensive nor obligatory list. I may not ask all of these questions and I may ask many others not listed here, but these questions form a groundwork, I think, for proper examination of a candidate for the highest court in the land. Some of my questions are similar to the 10 proposed in the letter from 100 legal scholars being released today. I may not ask all of the same 10 questions proposed in the letter, but I will certainly ask many of them. And every one of the questions proposed is appropriate for a Senator to ask. Questions: 1. First Amendment and Freedom of Expression: 2. First Amendment and the Establishment Clause: 3. Commerce Clause: 4. Under what circumstances is it appropriate for the Supreme Court to
overturn a well-settled precedent, upon which Americans have come to rely? 5. Under what circumstances should the Supreme Court invalidate a law
duly passed by the Congress? 6. Is there a constitutionally protected right to privacy, and if so,
under what circumstances does it apply? 7. What is the proper role of the federal government in enacting laws
to protect the environment? 8. What is the proper role of the federal government in enacting laws
to protect the rights of the disabled? 9. What is the proper relationship between Congress and the states in
enacting laws to protect the rights of patients? 10. What is the proper Constitutional role of Government in enacting
laws to regulate education? 11. How do you define judicial activism? Give us three examples of Supreme
Court cases that you consider the product of judicial activism. 12. Do you describe yourself as falling into any particular school of
judicial philosophy? 13. What in your view are the limits on the scope of Congress' power
under the Equal Protection and Due Process clauses of the 14th Amendment? 14. Where is the line between civil rights questions that are political
and questions that are appropriate for a court to decide? # # # |