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  • Open Daily: 10am - 10pm
    Alley-side Pickup: 10am - 7pm

    3038 Hennepin Ave Minneapolis, MN
    612-822-4611

Open Daily: 10am - 10pm | Alley-side Pickup: 10am - 7pm
3038 Hennepin Ave Minneapolis, MN
612-822-4611
Questioning Judicial Nominees: Legal Limitations and Practice

Questioning Judicial Nominees: Legal Limitations and Practice

Service, Congressional Research

Paperback

United States Politics

Currently unavailable to order

ISBN10: 1727354958
ISBN13: 9781727354959
Publisher: Createspace
Published: Sep 14 2018
Pages: 44
Weight: 0.28
Height: 0.09 Width: 8.50 Depth: 11.02
Language: English
The U.S. Constitution vests the Senate with the role of providing advice and affording or withholding consent when a President nominates a candidate to be an Article III judge-that is, a federal judge entitled to life tenure, such as a Supreme Court Justice. To carry out this advice and consent role, the Senate typically holds a hearing at which Members question the nominee. After conducting this hearing, the Senate generally either consents to the nomination by voting to confirm the nominee or instead rejects the nominee. Notably, many prior judicial nominees have refrained from answering certain questions during their confirmation hearings on the ground that responding to those questions would contravene norms of judicial ethics or the Constitution. Various canons of judicial conduct-that is, self-enforcing aspirational norms intended to promote the independence and integrity of the judiciary-may potentially discourage nominees from fully answering certain questions that Senators may pose to them in the confirmation context. However, although these canons squarely prohibit some forms of conduct during the judicial confirmation process-such as pledging to reach specified results in future cases if confirmed-it is less clear whether or to what extent the canons constrain judges from providing Senators with more general information regarding their jurisprudential views. As a result, disagreement exists regarding the extent to which applicable ethical rules prohibit nominees from answering certain questions. Beyond the judicial ethics rules, broader constitutional values, such as due process and the separation of powers, have informed the Senate's questioning of judicial nominees. As a result, historical practice can help illuminate which questions a judicial nominee may or should refuse to answer during his or her confirmation. Recent Supreme Court nominees, for instance, have invoked the so-called Ginsburg Rule to decline to discuss any cases that are currently pending before the Court or any issues that are likely to come before the Court. Senators and nominees have disagreed about whether any given response would improperly prejudge an issue that is likely to be contested at the Supreme Court. Although nominees have reached varied conclusions regarding which responses are permissible or impermissible, nominees have commonly answered general questions regarding their judicial philosophy, their prior statements, and judicial procedure. Nominees have been more hesitant, however, to answer specific questions about prior Supreme Court precedent, especially cases presenting issues that are likely to recur in the future. 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.

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