Correcting The Record
Judge Roberts and Judge Alito Declined to Answer a Wide Variety of Questions During their Senate Confirmation Hearings, with Republican Encouragement
RHETORIC: Today, Judiciary Committee Republicans asserted that Judge Sotomayor has not been complete and clear in her views on particular issues.
JUDGE SOTOMAYOR has been clear and forthcoming in her answers to wide-ranging questions from all Senators. She has answered more questions more in depth than any nominee in recent history.
A Senate Republican Policy Committee Report concluded that “the preservation of an independent judiciary” depends on a nominee’s ability to avoid signaling how she will rule on upcoming cases.
RPC Report: “It is inappropriate for any nominee to give any signal as to how he or she might rule on any issue that could come before the court, even if the issue is not presented in a currently pending case. If these novel ‘prejudgment demands’ were tolerated, the judicial confirmation process would be radically transformed. . . . “
“No judge can be fair and impartial if burdened by political commitments that Senators try to extract during confirmation hearings. Otherwise, judicial nominees will be forced to sacrifice ethics and impartiality to be confirmed. . . . Senators naturally want to know how future cases will be decided, but curiosity must yield to the greater value—the preservation of an independent judiciary and the guarantee of equal justice. . . . “
“Nothing less than judicial independence and the preservation of a proper separation of powers is at stake. The Senate should not allow short-term curiosity about particular issues to override the settled procedures that have governed this process for so long.” (Commissioned by Senator Kyl, 2005)
At his confirmation hearings, Judge Roberts declined to answer numerous questions from Senators.
In response to Senator Specter’s question about reproductive rights: “Again, I think I should stay away from discussions of particular issues that are likely to come before the Court again. And in the area of abortion, there are cases on the Court’s docket, of course. It is an issue that does come before the Court. So while I’m happy to talk about stare decisis and the importance of precedent, I don’t think I should get into the application of those principles in a particular area.” (Senate Confirmation Hearing, p. 142)
In response to then-Senator Biden’s question about the right to die: “Senator, that’s asking me for an opinion in the abstract on a question that will come before the Court. And when that question does come before the Court, the litigants before me are entitled to have a Justice deciding their case with an open mind, based on the arguments presented, based on the precedents presented.” (Senate Confirmation Hearing, p. 328)
In response to Senator Feingold’s question about recusal: “Senator, that, again, is a question I can’t answer for you. I can’t address that. There’s a motion pending in the Court seeking to file a petition to recuse, and that motion is pending. It’s a matter I can’t talk about outside of the judicial process. In addition, because the Hamdan case itself is still pending, I don’t think that’s appropriate for me to address that.” (Senate Confirmation Hearing, p. 245)
Judge Alito also repeatedly avoided answering Senators’ questions.
In response to Senator Schumer’s question about reproductive rights: “I’ve tried to provide as many answers as I could, and obviously, I’m speaking here extemporaneously in response to questions. The line that I have tried to draw is between issues that I don’t think realistically will come before the Court, and on those, I feel more freedom to respond.” (Senate Confirmation Hearing, p. 553)
In response to Senator Graham’s question about judicial nominations: “I think it’s what we call in law school ‘the slippery slope’ and if you start answering the easy questions, you’re going to be sliding down the ski run and into the hard questions and that’s what … I’m not too happy to do.” (Senate Confirmation Hearing, p. 431)
In response to Senator Feingold’s question about statutory construction: “I don’t know. I would have to be presented with the facts of the particular case and consider it in the way I would consider any legal question. I don’t think I can go beyond that.” (Senate Confirmation Hearing, p. 617)
In response to Senator Leahy’s question about court stripping: “Well, I would give the same answer to that that I gave to the more general question you asked a few minutes ago … . It’s not a question that I have obviously have had to deal with in my capacity as a judge or something that I’ve written about or studied in any sort of a focused way.” (Senate Confirmation Hearing, p. 584)