08/18/2009 05:12 am ET | Updated May 25, 2011

Reflections on the Senate Confirmation Hearings, Part II - Duck, Duck, Goose

When asked what the Senate hearings revealed about Judge Sotomayor's legal views, the distinguished law scholar, Prof. Laurence Tribe responded: "Nothing." That is because the senators have accepted the following response from all recent court nominees: "I cannot answer that question because that issue may come before me, if I am confirmed." I assume the reasoning being that the judge would have to recuse herself (withdraw from the case) because she had already expressed her views on the issue. In my opinion, this practice and the Senate's acquiescence in it is wrong and counterproductive to the real purpose of the Senate hearings for judicial nominees. (This is not meant to be a criticism of Judge Sotomayor, because all nominees have followed the same practice.)

The hearings are not really about judicial qualifications any more. One must assume that presidents will have picked someone qualified (with some few exceptions). The inquiry then primarily focuses on the judicial philosophy of the nominee. I agree that a nominee should not answer hypothetical questions on cases that may arise in the future, but I see no reason why nominees should not answer questions regarding existing court opinions. Why can't the nominee be asked: Do you agree or disagree with the Supreme Court's rulings on specific cases involving abortion, states' rights, executive power, the Second Amendment, the reach of the commerce clause, etc. and then be asked to explicate that position. There can be no greater test of the nominee's knowledge of the law, scholarship, and most importantly, judicial philosophy.

Nor do I believe that the expression of such views would require recusal if the issue or one similar to it should arise in the future. The sitting Justices have all expressed their views in their prior opinions, and they certainly would not have to recuse themselves if the same or similar issue arose again in a subsequent case. Why then should a nominee for the Supreme Court be in any different position? The hearings now reveal more about the senators asking the questions than the nominee who responds. Let's end this game of Duck, Duck, Goose and make the Senate confirmation hearings meaningful and not just showtime for the senators. Otherwise, just have the nominee send in a note saying: I will decide cases based upon the facts and applicable law and will adhere to precedent.