Why Sotomayor Should Not Say What She Thinks – The Ninth Justice

National Journal

As night follows day, the spectacle unfolding as 19 senators pose their questions to Judge Sonia Sotomayor will include a succession of demands for candor about her views — especially from Republicans — which the nominee will meet with ducking, dodging and evasion.

Sotomayor will steadfastly claim, as did all of the current justices, that it would be improper to disclose her views on issues that might come before her, except at a high level of generality. And she will be right.

I have not always held this view, and I hold it now even though there are very strong reasons for demanding candor from a nominee who is effectively running for a lifetime appointment that will give her far more power than any member of Congress, and with no accountability to voters, ever.

Once confirmed, as seems almost assured, Sotomayor will likely spend three or more decades setting national policy (when in the majority) on issues including racial quotas and preferences; discrimination law; war powers of the president, Congress and the judiciary; abortion; church-state relations; gay rights; campaign finance; environmental law; property rights; gun control; whether judges should change the meaning of the U.S. Constitution to conform to foreign law; the death penalty; and other criminal law issues.

It’s unimaginable that any serious candidate for Congress or the presidency could refuse to tell us what he or she thinks about any — let alone all — of these issues.

So why should there be an exemption for a nominee who seeks to sit on the only body with power to strike down presidential and congressional acts?

Then-Sen. Joe Biden’s frustration was understandable when he said to John Roberts in 2005, "We are rolling the dice with you, judge…. You’ve told me nothing… as if the public doesn’t have a right to know what you think about fundamental issues facing them."

Of course, there are obviously strong political incentives for nominees to refuse to disclose their views. Washington is bursting with interest groups that have impassioned views on all sides of every issue. In such a world, every candid answer would offend this or that group. And dozens of candid answers strung together would create formidable coalitions of opponents.

That’s what happened to Judge Robert Bork, who was voted down by 58-42 in 1987, after detailing his views on just about every hot issue. Bork had little choice. He had savaged so many liberal Supreme Court precedents before his nomination that he had to explain and defend his prior statements.

After seeing what happened to Bork, people who dream of sitting on the Supreme Court have tried to keep their views on issues such as abortion to themselves whenever possible — before as well as after being nominated.

But making life easy for nominees is not a very persuasive reason for giving them life-tenured seats on the Supreme Court without first learning what they think.

As for the notion that candid testimony by a nominee about her views would compromise her impartiality, that doesn’t hold much water either.

A jurist’s ethical obligation not to prejudge cases is to have no bias for or against particular litigants, not to hide her views about all of the legal issues in the case. Indeed, all of the justices participate on a regular basis in deciding cases that raise issues common to other cases on which they have previously ruled. Seven of the justices now sitting on the court have told us whether they would overrule Roe v. Wade, for example. So why shouldn’t Sotomayor do the same?

Consider also the court’s 2002 decision striking down a Minnesota ethical canon that prohibited candidates for elective judgeships from "announcing their views on disputed legal and political issues." Citing candidates’ free-speech rights, Justice Antonin Scalia held that "it is virtually impossible to find a judge who does not have preconceptions about the law," and "pretending otherwise by attempting to preserve the ‘appearance’ of that type of impartiality can hardly be a compelling state interest."

All that said, there is a compelling ethical justification for nominees’ refusal to say what they think about the issues. It is that answering such questions threatens judicial integrity and independence, as distinguished from impartiality.

Senators are not just satisfying their intellectual curiosity when they ask nominees what they think of Roe v. Wade, or of school prayer, or of racial preferences, or of some hotly disputed Clean Water Act issue. They are pressing for implicit commitments akin to campaign promises.

If nominees were to play this game, it would become a "bargaining process," in which nominees would be pressured to "promise to do certain things in exchange for votes," as Roberts put it during his confirmation hearing.

Republican senators may well, for example, press Sotomayor to say that she will honor the Supreme Court’s precedents holding that use of racial preferences in government programs is unconstitutional unless "narrowly tailored" to serve a compelling government interest. If she needed their votes (which she doesn’t), the judge might be tempted to tell them what they want to hear. But doing so would cement a kind of corrupt bargain by compromising her freedom to vote her conscience once confirmed.

Beyond that, such a confirmation process might well open the way for White House officials to press would-be nominees to virtually pledge their votes on long lists of issues in secret, pre-nomination interviews.

Traditionally, by most accounts, presidents and their aides have avoided asking potential nominees detailed questions not only because of ethical concerns but also because the Senate Judiciary Committee routinely demands full disclosure of all discussions with the nominee; senators would properly denounce the White House for demanding and the nominee for providing answers to various "litmus-test" questions.

But if senators succeed in forcing nominees to detail their views publicly, the
White House will feel freer to demand that potential nominees detail their views privately — and to grill would-be nominees until they find one who comes up with all the right answers.

Then, to win Senate confirmation the nominee might have to swear allegiance to beliefs rather different from those that she professed to the White House, at least in times of divided government.

Once on the court, would such new justices honor their secret commitments to the White House or their public testimony to the Senate? In either event, this would be a formula for choosing hacks, not independent jurists. Better to evaluate nominees’ views based on their pre-nomination records than to corrupt the selection and confirmation process.

Why do we find ourselves in this strange and undemocratic situation? Is there any way out of it? Not unless and until the Supreme Court pulls — or is forced — back from the ever-more-commanding role that it has assumed over the past five or six decades, a role that the founders could scarcely have imagined. And that’s a subject for another day.