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Argument That Has No Clothes
Published on Thursday, September 22, 2005 by
An Argument That Has No Clothes
by Andrew Bard Schmookler

Hasn't anyone noticed that this argument has no clothes?

I'm talking about the notion -maintained by both parties when it suits their purpose-that it would be inappropriate for a judicial nominee to answer substantive questions about his or her views on important constitutional issues.

It would compromise the integrity of the judicial process -so this argument goes-for a nominee to pronounce in advance on issues that may well come before the court in the future.

What nonsense!

Set aside the question of whether it's OK for these nominees to have opinions, so long as they don't express them. Or whether we're supposed to believe that a clever and experienced attorney, such as our most recent self-censoring nominee, John Roberts, has somehow managed to engage the basic issues of his field on behalf of his clients without ever forming an opinion of his own.

What's patently ridiculous, rather, is the argument that a judicial nominee would disqualify himself from rendering unbiased decisions in the future because he expressed his opinions on such issues now. When John Roberts takes a seat on the Court, he will be surrounded by eight other justices who have been writing opinions on countless issues for years. If John Roberts could reasonably be accused of prejudging potential future cases by articulating candidly his views on past cases and issues, then --by that same logic-- so would all these sitting judges.

By that logic, those justices that have written opinions in cases involving the right to privacy, or the interstate commerce clause, or the separation of church and state, would have to disqualify themselves from any future cases involving those issues.

But there is no logic.

And just as we have no need to dispose of judges as soon as they've expressed opinions from the bench, so there is no substance whatever to the claim that judicial nominees have any ethical obligation to decline to answer substantive questions -not about hypothetical cases, but about cases that have already been decided by the Court.

What reason can there be why Judge Roberts would be obliged not to answer -indeed why he would have the "right" not to answer-a question like, "In what ways do you agree with Justice Scalia's dissent in Lawrence v. Texas, and in what ways do you agree with the majority opinion?" His future colleagues, after all, have all answered that question most publicly when the opinion came down.

It's not surprising that there's no logic behind this supposed obligation of the nominee to demur, because the argument was never an honest one. Everyone knows it's really a mere fig leaf over the real purpose of such silence on matters of substance: to avoid giving the confirmation process any actual substance that might lead to controversy and threaten the nominee 's smooth glide toward confirmation. Invisible targets are harder to shoot down.

But what is surprising is that this empty argument is allowed to endure. How can so blatantly bogus an argument be allowed to parade in public, year after year, when it so clearly has no clothes?

America deserves better-no matter what the party of the president making the nomination. We deserve to hear substantive discussion of the vital constitutional issues whose resolution by the Court does so much to define what kind of country we are and will become.

We've long since seen that a judge's competence and character are not all we need to know, for their values and philosophies pretty predictably determine their votes. But in this country --where sellers of houses and dealers who sell cars are required by law to disclose all pertinent information-- when it comes to those whose judgments will shape our nation we're expected to buy a pig in a poke.

It's nonsense. It's unacceptable. And I'd even venture to say that it violates the spirit of our Constitution, for how can the Senate meaningfully give its "consent" when such a phony argument is allowed to keep that consent from being informed?

Andrew Bard Schmookler is the author of such books as The Parable of the Tribes: The Problem of Power in Social Evolution (SUNY Press) and Debating the Good Society: A Quest to Bridge America's Moral Divide (M.I.T. Press). He also conducts regular talk-radio conversations in both red and blue states. His website on the moral crisis besetting America today will debut on the web in the coming weeks. Schmookler can be reached at



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