"Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”
Is this the argument of some interest group or partisan, clamoring for extensive questioning of the President’s judicial nominees? No, they’re the words of Justice Scalia, quoting Chief Justice Rehnquist, in a 2002 Supreme Court case which is very relevant to the current debate over what questions it’s OK to ask a nominee to the Supreme Court.
In the case, Republican Party of Minnesota v. White, the Supreme Court said it was unconstitutional for Minnesota to bar candidates running for the Minnesota Supreme Court from talking about controversial issues that might come before them. Justice Scalia wrote the Court’s opinion. He quoted from an earlier opinion by then-Justice Rehnquist to point out that all judges, including Supreme Court Justices, have beliefs and preconceptions about the law:
“Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another.”
Not only do judges obviously have opinions on controversial legal issues, but they are free to state them:
“[J]udges often state their views on disputed legal issues outside the context of adjudication—in classes that they conduct, and in books and speeches.”
Talking about their opinions on disputed legal issues doesn’t make a judicial candidate or nominee unfit to be a judge:
“[A]ll statements on real-world legal issues ‘indicate’ how the speaker would rule ‘in specific cases.’ And if making such statements (of honestly held views) with the hope of enhancing one’s chances with the electorate displayed a lack of fitness for office, so would similarly motivated honest statements of judicial candidates made with the hope of enhancing their chances of confirmation by the Senate, or indeed of appointment by the President.”
For more detail on why it is appropriate for a nominee to the Supreme Court to respond to questions on his or her views on constitutional issues and Supreme Court cases, see this letter from Professor Stephen Gillers, an expert on legal ethics, and other law professors, explaining that the rules of judicial ethics allow nominees to answer those kinds of questions.
(Thanks to the American Constitution Society and the Center for American Progress for sponsoring an event which some NominationWatch.org writers attended yesterday, at which several speakers discussed the White case.)
