Carl Tobias

Questions and Answers In Supreme Court Confirmation Hearings

By CARL TOBIAS
Wednesday, July 22, 2009

Last week, the Senate Judiciary Committee conducted confirmation hearings for U.S. Court of Appeals Judge Sonia Sotomayor, President Barack Obama's first Supreme Court nominee. The hearings were critical to senators' fulfillment of their constitutional responsibility to offer advice on the President's nominee and consent to the jurist's appointment. One controversial, unclear issue pervaded the hearings: When is it permissible for a Supreme Court nominee to decline to answer questions posed by senators?

Legitimate Areas for Questioning

The Judiciary Committee's twelve Democratic and seven Republican members could and did ask Judge Sotomayor numerous complex questions in televised hearings before millions of viewers. This setting afforded huge incentives for playing to the crowd and attempting to throw the nominee off stride, temptations which numerous senators apparently found irresistible.

Senators could pose any question they wished, and a number did. Senate members have a constitutional duty to ensure that nominees have the wisdom, diligence, independence, and ethics, as well as an appropriate judicial temperament to serve. Moreover, senators may and did probe the jurist's judicial philosophy, jurisprudence, and political views, and even explored particular legal fields and judicial opinions she had authored or joined.

When Can A Nominee Decline to Answer?

Nominees frequently do not respond to questions that they deem inappropriate. However, the propriety of not answering is controversial. The more queries address issues that nominees, if approved, may decide while on the bench, the less probable is a response. This line has been drawn because nominees must resolve cases on their specific law and facts, and might have to recuse themselves as Justices, were the answers they gave during their confirmation hearings to suggest prejudging of the issues.

Thus, when senators' questions could prompt later recusal, nominees often politely decline to answer, as Chief Justice John Roberts and Justice Samuel Alito did on numerous occasions in their hearings. Should nominees respond to so few questions that senators cannot judge the nominees' qualifications, however, senators may vote no.

Judge Sotomayor's Approach: Consistent with Recent Practice

When Judge Sotomayor testified on three days last week, she followed approaches that all Supreme Court nominees since Judge Robert Bork have employed. Judge Sotomayor basically appeared to say only so much as was necessary to be confirmed, probably realizing that there was minimal advantage to be had in stating more or in being very direct, and substantial downside risk in doing so.

When Republican senators asked the jurist her views on abortion, she explained her general understanding of the Casey opinion, the most relevant case on abortion, but only minimally elaborated. For example, Senator Tom Coburn (R-Okla.) asked: "Should viability, should technology, at any time be considered as we discuss these very delicate issues that have such an impact on so many people" – but followed up, before the judge could respond, "And your answer is, that you can't answer it." The jurist then replied: "I can't because that's not a question the court reaches out to answer."

This formulation, or variations on it, were constant refrains throughout the three days. Judge Sotomayor's patented answers were not reserved for Republicans. For instance, when Senator Ted Kaufman (D-Del.) asked whether the jurist believed that "Congress has the constitutional authority to regulate financial markets," she responded, "I can't answer that question." When Senator Al Franken (D-Minn.) concomitantly asked whether Justice Clarence Thomas correctly determined that the Fifteenth Amendment did not authorize the Voting Rights Act preclearance provision, Judge Sotomayor began a protracted soliloquy about a "question that courts are going to be addressing." In response, Franken, like Coburn, interrupted her, saying "so that means you're not going to tell us."

In Chief Justice Roberts's 2005 hearing, Senator Jon Kyl (R-AZ), a senior GOP committee member, aptly captured the ideas behind Sotomayor's and prior nominees' declining to answer such questions: "It is not appropriate for a senator to demand a nominee's views on issues that are likely to come before the court. Not only would it violate this committee's standards and procedures for a nominee to answer questions about issues that may come before him as a judge, it would also be unethical for the nominee to answer such questions."

Thus, when committee members vote next week and the full Senate votes before the August recess, senators should remember the traditions that apply to senatorial questioning of nominees, while the American people should, in turn, understand why nominees answer senators' questions as they do.


Carl Tobias is the Williams Professor at the University of Richmond.

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