Questioning Judicial Nominees: Legal Limitations and Practice
Released: 2018-08-30T00:00:00

I n order to safeguard "the complete independence of the courts of justice," Article III of the U.S. Constitution provides that "the Judges, both of the supreme and inferior Courts" of the United States, "shall hold their Offices during good Behaviour" and receive a salary that "shall not be diminished during their Continuance in Office." By granting U.S. Supreme Court Justices, judges of the U.S. Courts of Appeals and U.S. District Courts, and other such "Article III" judges a guaranteed salary and "the practical equivalent of life tenure," the Founders sought to insulate the federal courts from political pressures that might influence judges to favor or disfavor certain litigants instead of neutrally applying the law to the facts of a particular case.

Because Article III judges ordinarily hold their positions for life, and because federal judges can decide issues of great legal and political significance, the decision whether or not to elevate any particular judicial candidate to the federal bench can be momentous. The U.S. Constitution empowers the President to nominate candidates for Article III judgeships, but also vests the Senate with the role of providing "advice" and affording or withholding "consent" with respect to the President's nominees. To carry out this "advice and consent" role, the Senate typically holds a hearing at which Members of the Senate Judiciary Committee question the nominee. After conducting this hearing, the Senate generally either "consents" to the nomination by voting in favor of the nominee's confirmation or instead rejects the nominee.

Ideally, "the questioning of nominees at confirmation hearings enables [S]enators to obtain useful and indeed necessary information about nominees." To that end, Senators commonly ask questions that are intended to enable the Senate "to evaluate not only the nominees' qualifications, but also their beliefs and probable voting patterns on the Court." Such questions frequently include inquiries "about specific cases, judicial philosophy, and attitudes on issues that are likely to come before the Court." However, judicial nominees have often refused to answer certain questions at their confirmation hearings—or have volunteered only perfunctory responses—claiming that fully answering certain questions could violate various ethical norms governing judges and judicial candidates or impair the independence or fairness of the federal judiciary. To name several notable examples, then-Judge Ruth Bader Ginsburg stated during her Supreme Court confirmation hearing she could offer "no hints, no forecasts, [and] no previews" of how she might rule on questions that might come before the Court. Similarly, then-Judge Antonin Scalia refused to state his opinion on any prior Supreme Court decisions, declining even to discuss Marbury v. Madison , the foundational case establishing the power of courts to review laws under the Constitution. Some commentators and Members alike have expressed frustration regarding nominees' reticence to reveal their jurisprudential views during their confirmation hearings. While by no means the consensus view, some argue that if prospective judges refuse to divulge how they will rule on controversial legal issues once they reach the bench, then Senators cannot cast a fully informed vote when deciding whether to confirm or reject the nominee.

At the same time, however, even though many wish that federal judicial nominees were more forthcoming during their confirmation hearings, there is nonetheless "relative agreement among nominees, senators, and commentators" alike that "there must be some limitations on a potential Justice's answers" during the confirmation process. For instance, most commentators agree that a nominee should not make "[e]xplicit or implicit promises" to rule in a certain way in future cases during his or her confirmation hearing, as "such promises if sought and given would . . . compromise judicial independence and due process of law" by depriving litigants of their constitutional entitlement to a fair adjudicator. These commentators further maintain that the integrity of the federal judiciary would suffer if a judge's responses to Senators suggested that his "confirmation ha[d] been purchased through the pledge of future conduct in office."

In response to concerns regarding the proper conduct of judges and judicial candidates, judges and bar associations have promulgated a variety of "canons" of judicial ethics—that is, self-enforcing, aspirational norms intended to promote the independence and integrity of the judiciary. Among other things, these canons provide nominees with general guidance regarding which sorts of statements by judges and judicial candidates are appropriate or inappropriate. As discussed below, most commentators agree that the canons discourage federal judicial nominees from pledging to reach predetermined results in future cases. However, scholars, nominees, and Members of Congress have not reached a consensus regarding the extent to which ethical canons otherwise constrain a nominee from answering other types of questions at his or her Senate confirmation hearing.

Beyond the canons of judicial ethics, historical practice reveals the constitutional norms that have influenced what questions a federal judicial nominee should or must refuse to answer. Here, too, however, different nominees have reached different conclusions regarding which types of responses are improper. As a result, the boundaries between proper responses and improper responses remain unsettled.

This report examines the relevant considerations with respect to the questioning of judicial nominees. The report begins by discussing applicable canons of judicial ethics that may discourage judicial nominees from answering certain questions posed by Members of Congress. The report then proceeds to discuss which types of questions prior federal judicial nominees have answered or declined to answer, focusing on nominees for the U.S. Supreme Court. The report concludes with some takeaways for Members.

Codes of Judicial Conduct

The federal judiciary, state courts, state legislatures, and various bar associations have all developed codes of ethical standards intended to guide the conduct of judges and judicial candidates. As explained below, many of these codes contain provisions that could discourage nominees for federal judgeships from answering certain types of questions during their confirmation hearings. Each of the ethical rules discussed below purport to constrain what a federal judicial nominee may permissibly say during the confirmation process; none of the ethical rules, however, affirmatively obligate nominees to respond to particular questions. Moreover, the applicable ethical rules purport only to prohibit the nominee from answering certain questions; they do not explicitly purport to prohibit Members from asking those questions.

As the following sections explain, however, canons of judicial ethics are generally self-enforcing, with the result that there is virtually no case law and only minimal commentary analyzing how these codes of judicial conduct apply in the specific context of confirmation hearings for appointed federal judges. Although it is possible to draw analogies from other contexts—especially statements and promises that candidates for elected judgeships at the state level make during their campaigns—neither the canons nor the advisory opinions interpreting them definitively address how the various ethical rules apply in the specific context of a confirmation hearing before the U.S. Senate. Further complicating matters is the fact that not all of the canons discussed below apply equally to all nominees.

Perhaps for these reasons, neither judicial nominees nor Members of Congress nor commentators have reached a consensus regarding the precise range of responses that are permissible under the relevant canons of judicial conduct. Some nominees have suggested that ethical considerations prohibit judicial candidates from making virtually any statement about any legal issue that could conceivably come before the federal judiciary. Some scholars, by contrast, take the opposite position—that the applicable canons "impose[] surprisingly few restraints on the scope of a nominee's responses." According to this view, "a nominee's answers before the Senate Judiciary Committee[] will violate" the applicable codes of judicial conduct "only where they evince a settled intention to decide certain cases in a certain manner," such as "promising to reach a predetermined outcome" in a future case "irrespective of the arguments of the parties or the discrete facts of the presented case." Still other commentators take the intermediate position that the applicable ethical rules grant judicial nominees the flexibility to "make a personal judgment about how to fulfill the ethical requirements of the role of a judge in responding to questions posed by Senators during the confirmation process"—and, thus, a personal judgment about which types of responses would or would not run afoul of ethical norms.

The Code of Conduct for United States Judges

The first relevant set of ethical standards is the Code of Conduct for United States Judges (Code of Conduct) promulgated by the Judicial Conference of the United States (Judicial Conference). The Code of Conduct "prescribes ethical norms for federal judges as a means to preserve the actual and apparent integrity of the federal judiciary." It contains a series of ethical "canons" intended to "provide guidance to [federal] judges and nominees for judicial office" regarding proper judicial behavior. By its terms, the Code of Conduct "applies to" most Article III judges, including "United States circuit judges" and "district judges." The Code of Conduct is therefore especially relevant for nominees to the U.S. Supreme Court, many (though not all) of whom tend to be sitting federal judges.

Significantly, the Code of Conduct is not a binding set of laws per se, but is rather a set of "aspirational rules" by which federal judges should strive to abide. "The Code of Conduct contains no enforcement mechanism," and "the Code is not designed or intended as a basis for civil liability or criminal prosecution." "The only remedies for violation of the Code are the institution of a disciplinary complaint" against the offending judge "or a motion to disqualify" the judge from a pending case, and neither of those remedies is granted with great frequency. Furthermore, not every violation of the Code of Conduct warrants discipline or disqualification. Thus, while the Code of Conduct may limit the types of responses a sitting federal judge may provide during his or her confirmation hearing, a nominee who transgresses those limits might not ultimately face any practical consequences as a result of that transgression.

It is uncontroversial that the Code of Conduct at least permits a judicial nominee to appear at his or her confirmation hearing for questioning. However, the extent to which the Code of Conduct restricts what the nominee can say during that hearing is less certain. Canon 3(A)(6) of the Code of Conduct provides that, with certain exceptions unrelated to judicial confirmation hearings, a "judge should not make public comment on the merits of a matter pending or impending in any court." This rule is intended to ensure that federal judges "perform the duties of the office fairly [and] impartially." While it is fairly clear that a sitting federal judge who has been nominated for elevation to a higher federal court should generally refrain from directly commenting about the merits of a pending case —especially a case arising from the nominee's own court —it is less clear whether (or to what extent) Canon 3(A)(6) discourages judicial nominees from answering more general questions about their jurisprudential views, controversial legal issues, and the soundness of judicial precedents that litigants may challenge in the future. For one, neither Canon 3(A)(6) nor the cases and commentary interpreting it specify how broadly the term "impending in any court" sweeps. As at least one court has recognized, "[t]here is almost no legal or political issue that is unlikely to come before a judge of an American court" at some point or another. Perhaps for that reason, some nominees have taken the position that "no nominee should express any view on most questions of law" because "virtually all legal issues may eventually be heard by" a federal court.

However, at least one scholar has taken the opposite position—that a matter is "impending" within the meaning of Canon 3(A)(6) only if there is "a discrete controversy[] with identifiable facts" and "specific litigants" that "is poised for litigation, though not actually filed." According to this definition, "a general issue" about law or jurisprudence—"even a highly contentious one that might someday reach the Supreme Court—would therefore lack the defining characteristics of an action or proceeding until it was actually embodied in a definable controversy between known parties." This scholar therefore maintains that the Code of Conduct permits judicial nominees to "explain how they would have decided well-known Supreme Court cases" like Roe v. Wade , even though an abortion case may well come before that nominee in the future. This scholar further contends that "pure questions of law, even those likely to be considered by the court, are never 'impending'" for the purposes of Canon 3(A)(6).

Apart from whether a nominee's comments would concern an "impending" case, it is also unclear what kinds of responses would amount to a public comment "on the merits." "Canon 3[(A)(6)] does not define 'on the merits,'" and few if any legal opinions provide meaningful guidance regarding what types of comments during a Senate confirmation hearing would impermissibly pertain to the "merits" of a pending or impending case for the purposes of the Code of Conduct. Thus, while it is clear that the Code of Conduct may constrain judicial nominees from answering certain questions during the confirmation process, nominees and commentators have not reached a consensus regarding the scope of those constraints.

The ABA Model Code of Judicial Conduct

Another pertinent set of ethical standards is the ABA Model Code of Judicial Conduct (Model Code) promulgated by the American Bar Association (ABA). The Model Code "is intended . . . to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies." Thus, like the Code of Conduct described above, the Model Code "establishes standards for the ethical conduct of judges and judicial candidates," including nominees for appointed judgeships.

Nevertheless, the extent to which the ethical principles embodied in Model Code constrain federal judicial nominees remains somewhat unclear because, as the name suggests, the Model Code is merely a " model template[] of legal and judicial ethics." In other words, the Model Code is not itself "binding on judges unless it has been adopted in" the state in which the judge is stationed or in which the judicial candidate is seeking office. "The ABA does not enforce the [Model] Code or discipline judges for violating it. Instead, the ABA offers its Code as a model for jurisdictions to adopt, and those that do are responsible for creating a mechanism to enforce it." Although many states have adopted binding standards of judicial conduct that are similar or identical to those set forth in the Model Code, variances between states do exist, with the consequence that the principles discussed in this section of the report will not necessarily apply equally to every judicial nominee. Nevertheless, the Model Code still provides guidance regarding the sorts of judicial conduct that are proper and improper, and judges commonly consult the Model Code to resolve ethical quandaries. Therefore, the following subsections of this report analyze provisions of the Model Code that could discourage federal judicial nominees from answering certain questions at their confirmation hearings.

Pledges, Promises, and Commitments

First, the Model Code prohibits judges and judicial candidates from making "pledges, promises, or commitments" regarding "cases, controversies, or issues that are likely to come before the court . . . that are inconsistent with the impartial[] performance of the adjudicative duties of judicial office." As the commentary to the Model Code explains, this prohibition is intended to promote the independence, integrity, and impartiality of the judiciary by insulating the judiciary from political influence:

[A] judge plays a role different from that of a legislator or executive branch official. Rather than making decisions based upon the expressed views or preferences of the electorate, a judge makes decisions based upon the law and the facts of every case. Therefore, in furtherance of this interest, judges and judicial candidates must, to the greatest extent possible, be free and appear to be free from political influence and political pressure.

Significantly, the commentary to the Model Code squarely states that the prohibition against "pledges, promises, or commitments" applies when a judicial candidate is "communicating directly with an appointing or confirming authority" —a term defined to include "the United States Senate when sitting to confirm or reject presidential nominations of federal judges."

As courts interpreting analogous state ethical rules have explained, "[w]hether a statement is a pledge, promise or commitment is objectively [discernible]. It requires affirmative assurance of a particular action. It is a predetermination of the resolution of a case or issue." Thus, "in determining whether a 'pledge, promise, or commitment' has been made, the question is whether 'a reasonable person would believe that the candidate for judicial office has specifically undertaken to reach a particular result.'" The clause thereby "prohibits a candidate from promising that he will not apply or uphold the law."

There do not appear to be any judicial cases or advisory opinions clarifying what types of statements qualify as "pledges, promises, and commitments" in the specific context of a confirmation hearing for an appointed federal judgeship. However, because the Model Code purports to apply equally to candidates for appointed and elected judgeships alike, cases analyzing the "pledges, promises, and commitments" clause in the context of campaigns for elected judgeships are illustrative.

In particular, cases discussing whether a nominee for an elected judgeship may answer surveys from advocacy groups seeking to discern the nominee's views on controversial legal issues can illuminate whether the "pledges, promises, and commitments" rule might likewise constrain a federal judicial nominee from answering similar questions during his or her Senate confirmation hearing. Advocacy groups commonly submit "questionnaires to candidates for election or retention" for state judgeships asking candidates to state their views on disputed legal questions, such as "whether they agree with Roe v. Wade , which held many forms of abortion legislation unconstitutional." As the commentary to the Model Code explicitly states, "depending upon the wording and format of such questionnaires, candidates' responses might be viewed as pledges, promises, or commitments to perform the adjudicative duties of office other than in an impartial way." Nevertheless, courts generally agree that state ethical canons derived from the Model Code do not categorically prohibit candidates from answering such questions in surveys—so long as those candidates do not pledge to issue specific rulings irrespective of the law or the facts. However, in order to clarify that such responses represent the candidate's personal views rather than a commitment to rule in specific ways, the Model Code admonishes judicial candidates to "acknowledge the overarching judicial obligation to apply and uphold the law, without regard to [the judge's] personal views," when responding to such questionnaires. Thus, by analogy, federal judicial nominees may be able to generally answer questions about their jurisprudential philosophies during their Senate confirmation hearings without running afoul of the "pledges, promises, and commitments" clause, but they should not commit to reaching particular results in specific cases if they are confirmed.

To that end, state courts and disciplinary bodies most commonly impose discipline under the "pledges, promises, and commitments" clause when a judicial candidate makes campaign promises to favor or disfavor certain classes of litigants in their rulings—such as pledges to rule against criminal defendants and in favor of children, crime victims, and police officers. The rule that a judicial candidate should not attempt to garner a larger share of the popular vote by promising to mechanically rule in particular ways would appear to apply equally to a judicial nominee seeking to induce Senators to vote in favor of his confirmation. Indeed, the drafting history of the Model Code states the following:

Although candidates for appointive judicial office are by definition not submitting themselves to the voting public at large, they are trying to influence a much smaller "electorate" . . . . It is just as improper in these small-scale "campaigns" to make pledges and promises that are inconsistent with the impartial performance of judicial duties as it is in campaign for elected office, with town meetings and television advertisements.

The commentary to the Model Code emphasizes that "pledges, promises, or commitments must be contrasted with statements or announcements of personal views on legal, political, or other issues, which are not prohibited" so long as the judicial candidate also "acknowledge[s] the overarching judicial obligation to apply and uphold the law, without regard to his or her personal views." Thus, according to the drafting history of the Model Code, a nominee may "announce[] his or her personal views—even strongly held personal views—on a matter that is likely to come before the court" without violating the "pledges, promises, or commitments" rule as long as that announcement does not "demonstrate[] a closed mind on the subject" or "include[] a pledge or a promise to rule in a particular way if the matter does come before the court." Some courts interpreting state ethical rules derived from the Model Code have therefore concluded that

most statements identifying a point of view will not implicate the "pledges or promises" prohibition. The rule precludes only those statements of intention that single out a party or class of litigants for special treatment, be it favorable or unfavorable, or convey that the candidate will behave in a manner inconsistent with the faithful and impartial performance of judicial duties . . . .

The foregoing analysis suggests that federal judicial nominees will not violate the "pledges, promises, or commitments" rule if they answer questions regarding their personal opinions on controversial legal or political issues during their confirmation hearing—as long as they do not promise to rule in a particular fashion in future cases presenting those issues.

Critically, however, as explained in the following subsection, a comment by a judicial nominee could conceivably qualify as an impermissible "public statement" under the Model Code even if it does not qualify as an impermissible "pledge, promise, or commitment." Moreover, as discussed in greater detail below, even if a public announcement regarding the candidate's jurisprudential views does not itself violate the "pledges, promises, and commitments" clause, successful candidates may nonetheless potentially be disqualified from hearing certain cases after taking the bench if their prior statements would lead a reasonable person to question their impartiality.

Public Statements

With certain exceptions not relevant here, the Model Code also prohibits judges and judicial candidates alike from making "any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending[] or impending[] in any court." This prohibition serves to avoid the public perception that a "judge has either pre-judged [a] matter or that the judge has such a strong bias that he cannot render or provide an arena where the jury can render an impartial decision based solely on the evidence." Because this "public statement" rule applies regardless of the forum in which the judge or candidate makes the statement, the Model Code thereby discourages federal judicial nominees from making certain types of public statements during their confirmation hearings.

The Model Code defines an "impending" matter to include any "matter that is imminent or expected to occur in the near future." Thus, by its plain terms, the "public statement" prohibition appears to apply to a broad array of legal disputes, including those that have not yet ripened into actual lawsuits. Nonetheless, the rule's scope is not unlimited; the annotations to the Model Code clarify that the term "impending" "does not include 'every possible social or community issue that could come before the court.'" Instead, "impending matters are those that if they continue on their regular course will end up in a court."

The annotations to the Model Code also state that "[o]nce a case is fully resolved and no longer pending, a judge is free to engage in any extrajudicial comments" about the case. One might reasonably interpret this annotation to grant federal judicial nominees some leeway to comment about cases previously decided by the Supreme Court or other courts. Nevertheless, statements about a prior case which implicate issues that are likely to recur in a future case could conceivably still fall within the Model Code's prohibitions.

Neither the case law nor the annotations to the Model Code provide significant guidance regarding what types of public statements made during the federal confirmation process may impermissibly "affect the outcome or impair the fairness" of a pending or impending matter within the meaning of the rule. However, the annotations to the Model Code do at least suggest that "[j]udges may . . . express their disagreement and criticism about the present state of the law as long as they do not appear to substitute their concept of what the law ought to be for what the law actually is."

Nonpublic Statements

Public hearings are not the only occasion where a federal judicial nominee could conceivably make statements that implicate ethical norms or rules. In addition to publicly appearing before the Senate for questioning, it is common for federal judicial nominees to meet privately with Members for courtesy visits in advance of their confirmation hearings. Some commentators have expressed concern that judicial candidates may make "commitments on particular issues or cases" during these meetings. As noted above, the Model Code prohibits judicial nominees from pledging to rule in a certain way, whether they do so publicly in their confirmation hearings or privately during courtesy visits with Members. Additionally, however, the Model Code prohibits nominees who are sitting federal or state judges from "mak[ing] any nonpublic statement that might substantially interfere with a fair trial or hearing." There are no cases applying this "nonpublic statement" rule in the federal judicial confirmation context, and cases interpreting the rule tend to arise in contexts that are not factually analogous to the judicial confirmation process. Moreover, the commentary to the Model Code provides little to no guidance regarding how the prohibition on nonpublic statements applies in the judicial confirmation process. Thus, it is unclear whether and to what extent the Model Code constrains nominees' conduct during private meetings with Members beyond prohibiting them from pledging to rule in particular ways if confirmed.

Disqualification

Beyond the need to comply with specific ethical norms, another reason that some nominees may avoid answering certain questions during their confirmation hearings is the need to refrain from making public statements that would mandate their disqualification from future cases. Several federal statutes, as well as several canons of judicial conduct, require federal judges to recuse themselves from adjudicating particular cases under specified circumstances. Of particular relevance here, 28 U.S.C. § 455(a)—with limited exceptions —affirmatively requires "any justice, judge, or magistrate judge of the United States" to "disqualify himself in any proceeding in which his impartiality might reasonably be questioned." As explained below, courts have concluded that a judge's extrajudicial statements or comments can sometimes mandate that judge's disqualification from particular cases pursuant to Section 455(a).

The "need to avoid frequent disqualification"—and, by extension, a judicial nominee's need to avoid making public statements that would warrant his or her recusal in future cases—is arguably particularly pressing "in the case of Supreme Court justices." Because "the Supreme Court is the ultimate tribunal on matters that are frequently of urgent public importance," some have argued that "[t]he nation is entitled, where possible, to decisions that are made by a full Court." Unlike in the lower courts, where a district or circuit judge from the same court may step in to take the place of a disqualified judge, neither retired Justices of the Supreme Court nor lower court judges may hear a case in a recused Justice's stead. Thus, the disqualification of a Supreme Court Justice from a particular case increases the likelihood that the Court will be evenly divided and thereby unable to create binding precedent for future cases.

"The standard for disqualification under § 455(a) is an objective one. The question is whether a reasonable and informed observer would question the judge's impartiality" as a result of the judge's conduct. Thus, "[t]he judge does not have to be subjectively biased or prejudiced" to mandate disqualification under Section 455(a), "so long as he appears to be so." "[D]isqualification from the judge's hearing any further proceedings in the case" is "mandatory for conduct that calls a judge's impartiality into question." Significantly, Section 455(a) "is not intended to give litigants a veto power over sitting judges, or a vehicle for obtaining a judge of their choice." Unjustified recusals "contravene public policy by unduly delaying proceedings, increasing the workload of other judges, and fostering impermissible judge-shopping." As a consequence, in order to avoid undesirable and unwarranted recusals, courts "assume the impartiality of a sitting judge and 'the party seeking disqualification bears the substantial burden of proving otherwise.'"

Section 455 is generally "intended to be self-enforcing, meaning that the recusal issue is supposed to be raised first by the judge and not the parties." Nevertheless, Section 455's "standards are not completely self-policing," as "a party [to the litigation] certainly may file a motion" to disqualify a judge if appropriate, and "a federal trial judge's refusal to disqualify himself" is subject to appellate review. However, a federal appellate court will generally overturn a district court judge's decision not to recuse himself only if that "decision was not reasonable and [wa]s unsupported by the record."

Section 455(a) is similar to the Code of Conduct discussed above to the extent that both strive to promote impartiality in the federal judiciary. Nonetheless, courts have recognized "that the Code of Judicial Conduct does not overlap perfectly with § 455(a): it is possible to violate the Code without creating an appearance of partiality; likewise, it is possible for a judge to comply with the Code yet still be required to recuse herself." Thus, when assessing whether a federal judge's public statement or comment mandates his or her recusal from a case, courts have considered—but have not treated as dispositive—whether the statement in question violates Canon 3(A)(6) of the Code of Conduct.

As some courts have observed, however, there is "little guidance on when public comments" made outside the context of a hearing or bench ruling "create an appearance of partiality for which § 455(a) recusal is the appropriate remedy." In particular, there are very few cases analyzing whether a judge's statement in the confirmation context can mandate that judge's disqualification from particular cases once that judge reaches the bench. Instead, the most common scenario in which a judge's public comments disqualify that judge from adjudicating a case is when the judge makes statements to the media about a case over which he or she is presently presiding. Such situations are only minimally illuminating, however, as a judge who volunteers statements to the media about a case over which he is actively presiding would seem to pose a materially greater risk to judicial integrity than a nominee who simply answers questions in the abstract regarding his or her jurisprudential views during a Senate confirmation hearing.

In re African-American Slave Descendants Litigation is one of the few Section 455(a) cases that directly discuss when, if ever, a federal judge must disqualify himself or herself on the basis of statements he or she made during the judicial confirmation process. The plaintiffs in African-American Slave Descendants moved to recuse the district judge assigned to the case, claiming that certain "statements [the judge] made to the United States Senate Judiciary Committee during [his] judicial confirmation" reflected "bias against either the [p]laintiffs or their lawsuit." Critically, however, the challenged statements "merely discussed [the nominee's] general legal views" on issues like "judicial restraint and the constitutional doctrine of separation of powers." The district judge therefore reasoned that his prior comments were "not so case-specific that a reasonable person would believe that they would predetermine his decision in [the plaintiffs' case] some two decades later." The court thus determined that the plaintiffs had failed to "proffer[] any valid reasons for recusal based on [the judge's] statements made in [a] questionnaire submitted to the United States Senate during his judicial confirmation."

Under different circumstances, however, historical practice supports the notion that a judge's prior public comments about disputed and controversial legal issues may warrant that judge's recusal from a future case. In 2003, for instance, Justice Scalia "gave a public speech . . . in which he spoke critically of an interpretation of the Establishment Clause that would disallow the 'under God' phrase to remain in the pledge of allegiance." When the Supreme Court later granted certiorari to decide a case presenting exactly that issue, Justice Scalia "announced that he would not sit on the case." Although Justice Scalia "did not explain why he would not participate" in the case, commentators have almost uniformly surmised that Justice Scalia determined that his prior public comments mandated his recusal.

The "distinction between a federal judge's expression of personal philosophy . . . and his expression of an opinion on some facet of a particular case which is before him" can potentially explain why recusal was warranted in the pledge of allegiance case but not in African-American Slave Descendants . Several judges have suggested that non-case-specific comments about jurisprudential philosophy are less likely to mandate recusal in future cases than questions about specific cases or issues that the judge may be called upon to adjudicate in the future. As a result, federal judicial nominees may be more inclined to answer general questions about their legal views than case-specific questions they may need to adjudicate if the Senate ultimately confirms them.

Historical Practice

As explained above, not only are the rules governing judicial ethics largely self-enforcing, they do not always provide clear answers regarding which types of conduct are permissible or impermissible. As a result, judges and judicial candidates often must decide for themselves whether various actions—including answering questions at a confirmation hearing—violate ethical standards. Judicial nominees developing their own standard for responding to Senators' questions may look to historical practice for guidance, customs that are informed by both ethical and constitutional considerations. More generally, historical practice can be an important resource for defining constitutional norms, particularly in interpreting the "scope and exercise" of the "respective powers" of the three branches of government.

For instance, during the hearing on whether to confirm then-Associate Justice William Rehnquist to the position of Chief Justice, the nominee initially declined to respond to a question from Senator Arlen Specter asking whether he thought that Congress could strip the Supreme Court of the ability to hear constitutional challenges. Senator Specter pressed the issue, stating that he believed this was an appropriate question on a fundamental issue. Justice Rehnquist responded by saying that he thought that Justice Sandra Day O'Connor, in her own confirmation hearings, "was asked similar questions" and "took much the same position." The Senator stated that he did not believe this was true. The next day, Justice Rehnquist reversed course, stating that while he continued to "have considerable reservations about" answering the question, he would "try to give" an answer in light of the fact that "one of [his] colleagues," Justice O'Connor, "ha[d] felt that [it] was proper" to respond to such questions.

The general standard that many nominees invoke when responding to Senate questioning has come to be known as the "Ginsburg Rule." During then-Judge Ruth Bader Ginsburg's confirmation hearing, she stated that she could offer "no hints, no forecasts, [and] no previews" of how she might rule on questions that would come before the Supreme Court. In her opening statement, she warned Senators that

Because I am and hope to continue to be a judge, it would be wrong for me to say or to preview in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously.

Judges in our system are bound to decide concrete cases, not abstract issues. Each case comes to court based on particular facts and its decision should turn on those facts and the governing law, stated and explained in light of the particular arguments the parties or their representatives present. A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.

Although the refusal to stake out a position on matters that are likely to come before the Court has become known as the Ginsburg Rule, the principle precedes Justice Ginsburg's hearing. Indeed, according to one recent study, the three Supreme Court nominees who most frequently "refuse[d] to answer a question on the ground that answering would create the reality or appear of bias, would interfere with judicial independence, or would be inappropriate for some other, similar reason," all predate Justice Ginsburg's hearing.

This section of the report examines nominations to the Supreme Court and describes the norms that have developed surrounding senatorial questioning and nominees' responses. This review focuses on Supreme Court confirmation hearings rather than lower courts, because Supreme Court nominations have traditionally involved a more comprehensive examination of the nominee. This section begins by briefly reviewing the development of the modern judicial confirmation hearing, and then discusses the general constitutional concerns underlying the exchanges between Senators and judicial nominees. Finally, it explores trends in the types of questions that nominees are willing to answer. In considering this final issue, however, it is important to keep in mind that due to the wide variety of senatorial questioning and the inherently personal nature of a candidate's decision to answer a particular question, there will almost always be exceptions to the general tendencies described below.

Historical Background

Nominees to the Supreme Court today go through a confirmation hearing before the Senate Judiciary Committee. But this was not always the case: the modern confirmation hearing, with nominees testifying in person, in a public hearing, before the Committee, is generally traced to the 1955 confirmation hearing of Justice John Marshall Harlan II. Since then, the number of questions that Senators have asked each nominee has increased, as the Senate Judiciary Committee has grown in size and as individual Senators ask more questions of the nominees.

Scholars and jurists have pointed to the failed confirmation of Judge Robert Bork, in 1987, as a watershed moment in the development of the modern confirmation hearing. President Ronald Reagan nominated Bork to the Supreme Court in 1987. The confirmation hearings were highly contentious, and the nomination was ultimately defeated by a vote of 58-42. Many have argued that Bork's nomination failed because he was too forthcoming or because the Senate improperly politicized the confirmation process, and that, as a result, subsequent nominees have been less willing to express their own views on legal issues.

Others have raised, as relevant here, two challenges to this conventional wisdom. First, some have argued that "Bork's nomination did not fail because he answered too many questions; it failed because he gave the wrong answers." Second, as suggested above, nominees have declined to answer certain questions since the advent of the modern confirmation hearing, predating the Bork hearing by more than thirty years: in 1955, then-Judge Harlan "avoided answering a question on civil rights" a mere "two questions into his" testimony. Studies by legal scholars suggest that as a general matter, judicial candidates' candor, or willingness to be fully forthcoming in response to questions, has not significantly decreased over time. But the types of issues discussed at these hearings have changed. According to one study, Senators today are more likely to ask questions about a nominee's judicial views, seeking a nominee's "opinions, thoughts, assessments, interpretations, or predictions."

Constitutional Justifications

Looking to past confirmation hearings, nominees to the Supreme Court have cited three related but distinct constitutional concerns to justify not answering certain types of questions. First, nominees have voiced concerns about answering specific legal questions outside of the normal adversarial process envisioned by the Constitution. Specifically, Article III of the Constitution provides that judges may hear "cases" and "controversies." The Supreme Court has interpreted this provision to prohibit so-called "advisory opinions" that do not present a true controversy. Instead, judges resolve discrete disputes through the adversarial process. As the Supreme Court explained in one case, standing requirements "tend[] to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action." Consequently, nominees to the Supreme Court have been reluctant to respond to hypotheticals posed by Senators, citing concerns about their ability to rule on an issue absent briefing and argument from adversarial parties.

The second constitutional concern is grounded in the Constitution's due process guarantees, and specifically in the assurance that cases will be resolved by unbiased judges. An "impartial judge" is a "necessary component of a fair trial." Consequently, nominees have avoided giving answers that would appear to "prejudge" future cases that might come before the Court, so as to avoid depriving future parties of impartial due process of law.

The final constitutional justification for declining to respond to certain questions is closely related to this concern about due process, but is grounded in separation-of-powers concerns. As discussed above, Article III is understood to establish an independent judiciary insulated from political pressures. Accordingly, courts have policed attempts by Congress to influence the decision of cases and controversies properly within the purview of the judicial branch, where Congress has "passed the limit which separates the legislative from the judicial power." Citing the importance of judicial independence from the legislative branch, nominees have avoided making any "pledge" or "promise" on how they would rule on a particular case or issue in exchange for confirmation.

The constitutional concerns motivating judicial nominees to decline to answer certain questions, however, must be counterbalanced against the constitutional responsibility of the Senate to give advice and consent to presidential nominees. The Senate essentially holds the power to "veto . . . the President's power of appointment." Senators have stated that candidate evasiveness frustrates their ability to perform their constitutional role—and in some cases, have in fact withheld votes because a candidate declined to answer questions. Nominees themselves have acknowledged that Senators may feel obligated to ask questions that the nominees nonetheless believe that they may not answer.

General Trends in Questions and Answers

Supreme Court nominees have generally declined to stake out positions on issues or factual circumstances that are likely to come before the Court in future cases, resulting in a practice referred to by some as the Ginsburg Rule. This standard has required nominees to assess whether various issues are likely to come before the Court, and nominees may disagree with Senators regarding that likelihood. Nominees have also typically declined to answer questions that do not expressly ask for their views on a particular case, if answering would nonetheless "suggest[]" that the nominee has prejudged a case.

Because nominees are unlikely to answer direct questions regarding their views on particular issues, to attempt to determine how a nominee might resolve cases if appointed to the Supreme Court, Senators have instead asked about a nominee's

judicial philosophy, prior statements on various issues, views on previously decided cases of the Supreme Court, and views on particular issues relating to the Court's procedures.

This section of the report explores each of these categories of questions in more depth, but as a general matter, nominees are more willing to talk about issues or cases that they believe are "settled" or "fundamental."

One exchange from the 1971 hearing on then-Assistant Attorney General Rehnquist's confirmation to the Court as an Associate Justice illustrates this dynamic. A Senator noted that the nominee had stated during the hearings that it "would be inappropriate to advance a definition of due process." The Senator contrasted this reluctance with a prior statement of the nominee: in a 1959 law review article, Rehnquist had argued that the Senate should "thoroughly inform[] itself on the judicial philosophy of a Supreme Court nominee," asking, in reference to the 1957 confirmation of Justice Charles Evans Whittaker, "what could have been more important to the Senate than Mr. Justice Whittaker's views on equal protection and due process?"

In response, the nominee said that he had not "changed [his] mind that the Senate ought to be interested in a nominee's views," but said that he had gained "an increasing sympathy for the problem of the nominee to respond to very legitimate questions from the Senators without in some way giving the appearance of prejudging issues that might come before him." He was willing to respond to the Senator's question by "advert[ing] to settled doctrines of due process," affirming doctrines that were "so well settled" that a nominee "need have no reservation" about stating them. In response to further questioning, Rehnquist also generally described how he would approach any case presenting an un settled question of due process, stating that he would look to precedent and ratification debates, but would not rule on the basis of his "subjective notions of fairness."

Other nominees may stake out clear "lines" regarding the types of questions they are willing to answer and refuse to transgress those lines even with respect to settled issues. Some nominees taking this position have stated concerns about a "slippery slope." Then-Judge Samuel Alito invoked this view to avoid taking a position on a hypothetical that, from his perspective, "seem[ed] perfectly clear." A Senator had asked whether it would be constitutional for the Senate to require sixty votes, rather than a majority, to confirm a nominee to the Supreme Court. Alito responded by saying that he did not think that he should answer "constitutional questions like that." The Senator pressed him, asking whether it would be constitutional for the Senate to allow a majority vote rather than a two-thirds vote for impeachment. Judge Alito at first seemed about to answer the question, saying, "there are certain questions that seem perfectly clear, and I guess there is no harm in answering," but ultimately declined to do so, saying that this was a "slippery slope," and if he "start[ed] answering the easy questions," he would then "be sliding down the ski run and into the hard questions."

Then-Judge Ginsburg made a similar statement in her confirmation hearing when she declined to discuss a certain case involving an executive branch policy that she believed might be adopted again by a future Administration. She said:

I sense that I am in the position of a skier at the top of that hill, because you are asking me how I would have voted in Rust v. Sullivan . . . . Another member of this committee would like to know how I might vote in that case or another one. I have resisted descending that slope, because once you ask me about this case, then you will ask me about another case that is over and done, and another case. So I believe I must draw the line at the cases I have decided.

To take another example, then-Judge Antonin Scalia refused to state his opinion on any prior Supreme Court decisions, declining even to discuss Marbury v. Madison , the foundational case establishing the power of courts to review laws under the Constitution. He acknowledged that other nominees had "tried to answer some questions and not answered the other," but concluded that he would not take that path. He reasoned that if his answer would be obvious—as if he were to endorse the holdings of Marbury v. Madison —then the Senators "do not need an answer, because your judgment of my record and my reasonableness and my moderation will lead you to conclude, heck, it is so obvious, anybody that we think is not a nutty-nutty would have to come out that way." On the other hand, if his views on an issue were not obvious, then he believed that his announcement of those views would "really prejudice[e] future litigants."

General Judicial Philosophy

Nominees seem most willing to discuss their general philosophies of law, including their approaches to constitutional and statutory interpretation. Thus, for example, then-Judge Clarence Thomas was asked repeatedly whether he believed in natural law as a principle of constitutional interpretation, to which he responded in the negative. Similarly, then-Judge Neil Gorsuch was asked to explain his commitment to originalism. And in response to a line of questioning that asked whether she believed in the idea of a living Constitution, then-Solicitor General Elena Kagan responded by explaining that while she believed the Constitution's general principles may be applied to new circumstances in new ways, she did not "like what people associate" with the term "living Constitution." Prior Supreme Court nominees have also given examples of jurists whom they admire —although then-Judge Ginsburg, at least, "stay[ed] away from the living" when naming her legal role models.

Judicial candidates may also discuss their general approach to evaluating precedent and stare decisis, the doctrine governing when courts should adhere to previously decided cases. Senators will sometimes ask for a nominee's views on stare decisis as a way of gauging whether he or she would be willing to overturn certain, often controversial, Supreme Court cases. For example, Senator Arlen Specter engaged in a lengthy discussion with then-Judge John Roberts about stare decisis in the context of the two primary Supreme Court cases establishing a right to an abortion. The nominee spoke generally about the principles of stare decisis, going so far as to say that certain factors in the analysis were "critically important," but repeatedly declined to say how he would apply principles in a particular case—or whether he agreed or disagreed with those prior Supreme Court cases.

Nominee's Prior Statements

Supreme Court nominees are generally willing to discuss their own prior work, including both prior judicial opinions and extra-judicial statements. If nominees have written about a particular issue, they may explain their position on that topic even if they otherwise would have declined to stake out positions on issues that are likely to come before the Court. This practice may also account for some variance in the topics that different nominees are willing to discuss: in his hearing, then-Judge John Roberts explained that he was unwilling to comment on whether particular decisions were correctly decided, notwithstanding the fact that Justice Ginsburg in her confirmation hearing had discussed some particular issues—namely, her view of Roe v. Wade —because she, unlike Judge Roberts, "had written extensively on that subject and she thought that her writings were fair game for discussion."

Sometimes nominees use the hearing to disclaim prior statements or explain that they would not adhere to a particular view as a Supreme Court Justice. For example, Chief Justice Roberts was asked in his confirmation hearing about certain memoranda he wrote while working in the Reagan Administration expressing the view "that bills stripping the Court's jurisdiction were constitutionally permissible." The nominee said that if he "were to look at the question today," he did not "know where [he] would come out." He later added, "I certainly wouldn't write everything today as I wrote it back then, but I don't think any of us would do things or write things today as we did when we were 25 and had all the answers." At times, nominees have explained that they took certain positions only because they were acting as an advocate, distinguishing that role from the role of a judge. Other times, however, nominees have adhered to and explained their prior non-judicial statements.

Notwithstanding the fact that nominees will usually discuss their previously expressed views, most Supreme Court candidates are reluctant to discuss their personal opinions on various issues. In two relatively recent hearings, when then-Judge Gorsuch was asked about his personal views on marriage equality and when then-Solicitor General Kagan was asked whether she personally believed that individuals possess a fundamental right to bear arms, both nominees declined to answer the questions and instead stated only that they accepted prior Supreme Court decisions on these issues. This approach likely stems from the modern belief, frequently echoed by nominees, that a judge's personal views should not provide a basis for deciding a case . Senators have asked generally whether nominees' personal or political views will influence their decisions in particular cases, including whether nominees' religious faith would influence their decisions.

However, nominees' personal lives have, at times, became a central subject in their confirmation hearings. Perhaps the most obvious example comes from Justice Thomas's confirmation hearings, which were extended to examine sexual harassment allegations. Justice Anthony Kennedy was questioned at length regarding his memberships in clubs that restricted membership to white males—and on what that membership implied about his views on discrimination more generally. Justice Sonia Sotomayor was questioned about her membership on the board of the Puerto Rican Legal Defense Fund and her involvement with the various cases that the group supported.

Previously Decided Supreme Court Decisions

Senators generally recognize that they should not ask nominees about pending cases, but will sometimes ask nominees about previously decided cases. Senators may hope that nominees' views on past cases reveal their beliefs on issues that are still contested. Nominees' willingness to respond to these types of questions varies widely. As mentioned above, then-Judge Scalia refused as a general rule to give his opinion on any previously decided cases of the Supreme Court, going so far as to refuse to state whether he agreed with Marbury v. Madison , a case that he nonetheless acknowledged in the hearing as "fundamental" and one he had previously cited in his capacity as a federal appellate judge. Other Supreme Court nominees have felt free to agree with Marbury v. Madison .

As with other issues, nominees' willingness to give their opinions on whether a prior case was correctly decided may turn on how likely they believe the issue presented in that case is to recur. Thus, a nominee might decline to discuss a case that presents historically unique factual circumstances if they believe that the legal issues or principles in that case may come again before the Supreme Court. For example, then-Solicitor General Kagan was asked for her "view of" Bush v. Gore , the decision of the Supreme Court that reversed the Florida Supreme Court's order requiring a recount of ballots in the 2000 presidential election. Kagan agreed that the particular circumstances of that case would "never come before the Court again," but said that "the question of when the Court should get involved in election contests in disputed elections is . . . one of some magnitude that might well come before the Court again." She said that if that were to occur, she would consider such a case "in an appropriate way."

The correctness or incorrectness of some cases appears to be so well established—at least in the minds of some nominees—that some Supreme Court candidates are willing to affirm or disavow those cases without discussing how likely an issue is to recur. Such cases include not only Marbury v. Madison , but also cases in the "anti-canon," such as Dred Scott v. Sanford , Plessy v. Ferguson , and Korematsu v. United States , that almost all modern lawyers agree were wrongly decided. Of course, if a case is considered to be well established as part of either the canon or the anti-canon, prevailing views about that case are unlikely to be challenged, indicating that even if they do not expressly say so, nominees may be willing to comment on these settled cases because challenges are unlikely to arise.

Because nominees are more likely to discuss cases that are generally considered to be well-established law, nominees' willingness to embrace certain cases may vary over time. Questions about the Supreme Court's decision in Brown v. Board of Education , the 1954 case that functionally overturned Plessy v. Ferguson and announced that "separate educational facilities" for children of different races "are inherently unequal," provide one example of how attitudes may shift over time. In the 1955 confirmation hearing of Justice Harlan and the 1959 hearing for Justice Potter Stewart, some Senators announced their disagreement with the Court's decision and attempted to discern whether these nominees agreed with the Court's result or reasoning. The nominees avoided giving their opinions on the case. Over the following decades, Senators continued to hold up Brown as an example of improper judicial legislating, pushing nominees to answer questions regarding the proper role of judges.

But as attitudes towards Brown shifted, so did its treatment in confirmation hearings. By Chief Justice Rehnquist's 1971 hearing for confirmation to the Court, he was willing to say that Brown was "the established constitutional law of the land." In response to a question about whether Brown represented "lawmaking," he stated that "if nine Justices . . . all unanimously decide that the Constitution requires a particular result . . . . that is not lawmaking. It is interpretation of the Constitution just as was contemplated by John Marshall in Marbury versus Madison ." In her 1981 hearing, then-Judge O'Connor was asked whether she would characterize Brown "as judicial activism," and if so, whether that was right. She responded by noting that "[s]ome have characterized" Brown "as judicial activism," but observed that the decision was unanimous and stated that she assumed the Court had been "exercising its constitutional function to determine the meaning . . . of the Constitution." But she later declined to state whether she agreed with the statement in Justice John Marshall Harlan's dissenting opinion in Plessy characterizing the Constitution as colorblind, noting that "litigation in the area of affirmative action is far from resolved." Since then, Supreme Court nominees have more readily endorsed Brown .

As mentioned, if a prior case is not considered settled law and if a nominee thinks issues from that case are likely to recur, the nominee may be unwilling to discuss the case at all. Alternatively, a nominee may merely acknowledge the existence of the case. Even then-Judge Scalia, who generally declined to express his views on cases, was willing to say that certain cases decided by the Supreme Court were "an accepted part of current law." For example, when Justice Kagan was pressed for her views on District of Columbia v. Heller , in which the Supreme Court recognized an individual right to keep and carry arms, Justice Kagan merely described the holding of the case and said that it was "settled law." At other times, nominees may be willing to discuss the general framework they would apply to analyze a given issue.

Judicial Procedure

Finally, nominees are sometimes asked questions relating to judicial procedure, and are often willing to speak generally on these matters. To take one recurring issue, Supreme Court nominees will generally offer their views on whether they support filming Supreme Court proceedings. Then-Judge Roberts and then-Judge Scalia both responded to questions regarding whether they believed the Supreme Court was overworked.

Supreme Court candidates have also discussed the issues of judicial misconduct. In this vein, a number of nominees have been questioned about the process to impeach judges. For example, Justice Kennedy, who had previously opposed legislation proposing reforms to the impeachment process, explained his position during his hearing. And then-Judge O'Connor spoke about her experience as a state court judge subject to different processes. Moreover, then-Judge Scalia stated that he believed the impeachment process was appropriately a "cumbersome process." Conversely, then-Judge Ginsburg largely demurred, stating that she believed "there may be a real conflict of interest, possibility of bias and prejudice on my part" in responding to questions about the impeachment process.

Finally, Senators have sometimes asked Supreme Court nominees whether they would recuse themselves under certain circumstances. Then-Solicitor General Kagan committed to recusing herself from any case in which she had been "counsel of record" and suggested that she might recuse herself "in any case in which [she had] played any kind of substantial role in the process." Similarly, then-Judge Sotomayor said that she would recuse herself from consideration of any decisions she had authored as a federal appellate judge. In his hearing, then-Judge Roberts stated that the fact that he had previously taken one position on an issue as an advocate would not require him to recuse himself in any future cases presenting the same issue. At other times, nominees have discussed cases in which they had previously recused themselves as lower court judges or spoken more generally about their views on recusal.

Conclusion

In sum, the applicable codes of judicial conduct and historical practice provide some guidance regarding what sorts of questions a nominee may permissibly answer during his confirmation hearing. Scholars, nominees, and even Members of Congress generally agree that under ethical rules as well as norms like the Ginsburg Rule a nominee should refrain from pledging to uphold or overturn particular precedents or to decide cases in certain ways. Nominees likely need to avoid making statements that could mandate their recusal from future cases under the federal judicial disqualification statute or under applicable canons of judicial ethics. Beyond that, however, the boundaries between permissible and impermissible responses are murky—and still contested during confirmation hearings. Historical practice suggests that nominees will not only avoid clear commitments to resolve future cases in certain ways, but in many circumstances, will avoid even giving "hints" about how they may view potential disputes. General questions relating to the nominee's jurisprudential philosophy are more likely to elicit forthcoming responses than specific questions about how the nominee intends to rule in particular categories of cases. However, nominees have been more likely to speak about particular legal issues if they have previously commented on that issue, such as in judicial opinions or extra-judicial statements. Ultimately, however, there are few available remedies when a nominee refuses to answer a particular question. Although a Senator may vote against a nominee who is not sufficiently forthcoming, as a matter of historical practice the Senate has rarely viewed lack of candor during confirmation hearings as disqualifying, and it does not appear that the Senate has ever rejected a Supreme Court nominee solely on the basis of evasiveness.