When the Senate rejected President Reagan's nomination of Judge Robert Bork to the U.S. Supreme Court close to 20 years ago, a half-dozen books and numerous articles were written marking the nomination as a watershed in Supreme Court politics. Opponents of the nominee mobilized more aggressively, more successfully, and in a more organized way than had been previously done. The 58-to-42 vote was the largest margin by which the Senate had ever rejected a Supreme Court nominee.
Following the Senate vote, Bork was quoted in The New York Times as noting, “There is now a full and permanent record by which the future may judge not only me but the proper nature of a confirmation proceeding.” Indeed, the fight over the Bork nomination set the standard for effective opposition advocacy -- a mixed blessing, depending on one's view of the nominee. But it also taught judicial nominees and those shepherding nominees through the Senate gauntlet a lesson: When it comes to answering Congress' questions, silence is golden.
Judicial nominees have long -- and rightly -- refused to answer questions as to how they would decide the outcome of a particular case. Prejudging cases without the facts, before hearing the evidence, is anathema to the idea of fair and impartial justice. But the successful modern nominee has done much more than demur on the matter of a pending case. Ruth Bader Ginsburg declined to answer a question on her view of the death penalty on the ground that it was not relevant to her role on the Court. Asked his views on abortion rights, David Souter countered: “I have not got any agenda on what should be done with Roe v. Wade if that case were brought before me. I will listen to both sides of that case. I have not made up my mind.” Perhaps least plausible of all, Clarence Thomas stated that he had never given any thought to whether Roe v. Wade was rightly decided. At some level, the strategy worked: All of them sit on the Court today.
Ironically, it was not candor in Judge Bork's answers to the Senate Judiciary Committee's questions that helped doom his nomination. Quite the contrary: Many of the responses Bork gave the committee belied the truth of what he had long believed. Any chance he might have had of convincing the committee that his views were not as extreme as had been painted was lost when he asserted positions that ran contrary to his repeatedly stated opinion. Most remarkable among these was his statement at the hearings that women were entitled to the protection of the equal-protection clause of the 14th Amendment -- a position quite contrary to his previous view that the clause applied only to racial discrimination. Ditto his apparent “confirmation conversion” on abortion rights.
The value of having a nominee respond candidly to the Senate's questions should be obvious in our democracy. The Constitution charges the Senate with the responsibility of “advising” the president on his choice before it “consents.” Advice based on incomplete or inaccurate information hardly serves the checking function the Constitution's Framers intended. For those who criticize the Court as inconsistent with a more purely democratic system of majority rule (where appointed judges cannot overrule the will of an elected legislature), information-rich confirmation hearings are the last best chance for public debate and the exertion of majority will over the executive's personal choice. As James Madison wrote, “A popular Government without popular information, or the means of acquiring it, is but a Prologue to a Farce or Tragedy; or, perhaps both.”
But it is not only democracy's interests that are served by a forthcoming nominee. The lesson of the Bork nomination is that it is in the nominee's interest to say what he or she thinks. This includes not only what he or she thinks about past writings of his or her own, or past decisions of the Court; it also includes his or her views about the proper institutional role of the president who nominates him or her, and the role of the Court on which he or she would serve.
While Judge John Roberts' public paper trail may be more modest than many, the views he has expressed as a lawyer and judge raise good questions for the Senate to ask on just these subjects. Most immediate, Judge Roberts joined an opinion just a few weeks ago concluding that the Geneva Conventions -- treaties the United States signed and ratified -- did not provide rights for detainees enforceable in courts. Does this view apply equally to Americans captured by Geneva Convention signatory states abroad (states that include Iran, Syria, and Sudan) as to aliens held by the United States? What is the legal result of treaties signed under U.S. law? Can the president unilaterally override treaties ratified by Congress under his power as commander in chief? Can the president similarly override statutes passed by Congress as long as he acts under his power as commander in chief? Is the president entitled to special deference on the proper interpretation of federal statutes conferring him power, or is statutory interpretation a task primarily entrusted to the judiciary to do, independent of presidential views?
None of this is to suggest that a nominee should be asked to prejudge applications of law to facts yet to come before the bench. But it does mean that a nominee should answer questions directly on the nature of the constitutional democracy in which he or she seeks to play a central part. Only in this way can the Senate effectively judge -- if not how Judge Roberts will rule, at least how Judge Roberts will think.
Deborah Pearlstein is director of the U.S. Law & Security Program at Human Rights First (formerly the Lawyers Committee for Human Rights) and is a visiting scholar at Princeton University's Woodrow Wilson School for Public and International Affairs.