Tuesday, July 12, 2005


NYT: Nominees' views at issue

Published: July 12, 2005

WASHINGTON - Each time senators asked Sandra Day O'Connor about her views on a specific topic like abortion during her Supreme Court confirmation hearings in 1981, she looked down at a piece of paper that had been prepared for her and read, "I do not believe as a nominee I could tell you how I would vote."

This response, known in the Senate as "taking the judicial Fifth," has been recited in one form or another by every recent Supreme Court nominee, and it is almost certain to be used this year by whomever President Bush chooses to replace Justice O'Connor.

It is bound to frustrate some senators and interest groups, since the new justice will be the swing vote on important issues like affirmative action, the role of religion in public life, states' rights, environmental protection and laws on partial birth abortion.

But as a practical matter, senators have no real recourse when a nominee declines to answer questions. They can hardly refuse to confirm the nominee on that ground alone, since so many other justices who have been noncommittal on the issues of the day have been approved.

Scalia in 1986In 1986, for instance, Antonin Scalia, shown then, right, refused even to say whether he subscribed to the principle of Marbury v. Madison, the fundamental decision in 1803 that established the authority of the Supreme Court to strike down laws as unconstitutional. The Senate confirmed him unanimously.

Senators opposed to the president's selection are not likely to be deterred from asking relentlessly about what the nominee believes. "This is one of the most important positions in the government," said Senator Charles E. Schumer of New York, who sits on the Judiciary Committee and is chairman of the Democratic Senatorial Campaign Committee. "We have a right to expect a good degree of specificity."

Senator Edward M. Kennedy, Democrat of Massachusetts, who as a member of the Judiciary Committee has questioned every Supreme Court nominee since the Johnson administration, said that if President Bush picked a candidate because of his or her judicial philosophy - about as safe a bet as can be placed in today's political climate - then senators deserved to learn about that philosophy.

But Senator Orrin G. Hatch of Utah, a senior Republican on the committee, said his side would resist such questioning and give support to a nominee who declined to answer. "What's important is, are they qualified?" Mr. Hatch said. "Judicial philosophy is important, but that's why we elect presidents. The president has the sole power of appointment, and he's within his right to choose nominees who have his judicial philosophy."

The way these senators view the matter is not surprising. Invariably, said Henry J. Abraham, an emeritus professor of government at the University of Virginia and an authority on Supreme Court confirmation battles, senators in opposition want nominees to face as many questions as possible, while the president and his allies want to avoid anything that might derail the nomination.

Mr. Kennedy took a different tack in 1967, when he was supporting Johnson's nomination of Thurgood Marshall to be an associate justice. Then, Mr. Kennedy argued that judicial philosophy was not a proper line of questioning and that senators should stick to examining the candidate's "background, experience, qualifications and temperament."

The senator who has consistently been most outspoken over the years in his belief that candidates for the Supreme Court should undergo rigorous scrutiny by the Senate is Arlen Specter, who is now chairman of the Judiciary Committee.

In his autobiography, "Passion for Truth," published in 2000, Mr. Specter, a Pennsylvania Republican, wrote that the Senate should reject nominees who refuse to "answer questions on fundamental issues" and added: "In voting whether or not to confirm a nominee, senators should not have to gamble or guess about a candidate's philosophy but should be able to judge based on the candidate's expressed views."

Since the court vacancy occurred, Mr. Specter has not publicly addressed the proper range of questioning, so it is not clear whether he still holds the position he took in his book.

Mr. Specter's views were shaped in large part by his experience questioning Robert H. Bork, an appeals court judge whom President Ronald Reagan nominated to the Supreme Court in 1987.

Full NY Times article, "No-Comment Is Common at Hearings for Nominees."

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