ConfirmThem

By AndrewHyman Posted in Judiciary Committee — Comments () / Email this page » / Leave a comment »

Senator Feingold and others are saying that there's nothing wrong with a judicial nominee stating views on issues that may come before him, just like there's nothing wrong with sitting members of the Court expressing views in their opinions without prejudicing themselves in future cases. Although seemingly plausible, that attitude is mistaken. [UPDATE: Sen. Feingold said, "Even the current justices, whose views on specific cases are well-known, since they either wrote or joined one opinion or another, do not have to recuse themselves from a future case just because we know what they think of a crucial precedent in that case."]

Sitting Supreme Court justices are not free to advise the other branches of government how they might have voted on cases that pre-dated their elevation to the Court, or how they might decide cases that have not yet been decided by the Court. Rendering advisory opinions to the President violates Article II, Section 2, Paragraph 1 of the Constitution, which says that the President can only require opinions from officers “in each of the executive departments.� That’s why our country's very first Chief Justice, John Jay, refused to provide advisory opinions to George Washington. The same principle applies to providing advisory opinions to the Senate. Moreover, commenting about previously decided cases would jeopardize a justice’s impartiality if the issue returns to the Court, and could be grounds for recusal.

Judge Roberts must show that he can faithfully interpret the laws without substituting his own principles or philosophy in place of what the Constitution objectively requires. That should really be the only issue here, and that issue can be decided without forcing Roberts to advise the Senate how he would decide particular issues. The Senate is supposed to be providing the advice here, not the other way around.