Go ahead and ask
That's Andrew McCarthy's take on asking nominees what they think of specific Supreme Court cases:
Roe is a transcendent decision. Far more than abortion, it is about defining the judicial task itself. Why should we be offended by a “litmus test” about such a thing? President Bush promised to appoint judges who would interpret the law as it was enacted and would not see their role as inventing (and, more importantly, imposing) new law — a job that belongs to the political branches who are directly accountable to voters. By that standard, Roe is a litmus test. Or at least it should be.Maybe he's right, but it's still against the rules of ethics to answer.
A few scattered thoughts:
What better way is there to gauge a judge's judicial philosophy than by asking him to critique a decision that is highly controversial.
The theory for not answering is that it would intrude on a judge's independent judgment by trying to bind him or her to a specific ruling, but suppose Roberts told them he believed that Roe was controlling precedent and couldn't be challenged, as he did when he was in consideration for the D. C. Circuit. What could anybody do if he went ahead and voted to overturn it? They might accuse him of perjury, but he can always say that his views had "evolved," and how could they prove otherwise?
In a sense, blocking nominee to the Supreme Court with a filibuster is as dishonest and contrary to protecting and upholding the constitution as lying to the Senate would be, if it's done to prevent them from from blocking you unconstitutionally.
The problem with all of this is more of the same point I've made before, that the Supreme Court shouldn't subject itself, or nominees for judicial positions, to the indignities of a mudslinging political campaign for office. Having done so with decisions like Roe, don't they have an obligation to correct their errors by reinstating judicial restraint?
Refusing to answer such questions, as Justice Ginsburg did, is somewhat like taking the Fifth. Everybody assumes that you're guilty of something. If you don't have to answer the questions at all, why should you have to answer them truthfully?
The difficulty this presents is that while debating the jurisprudence of such decisions would be healthy, having to deal with the kind of attacks that Judge Bork and Judge Thomas suffered makes it just more trouble than it's worth to hand them a reason to attack you with falsehoods and irrelevancies. The groups who fund the Democrats on matters like abortion have no ethical limits. It's no hold barred for them, which is why they wanted the Court to remove these issues from the purview of legislatures in the first place. They don't care about democracy, just getting their own way.
The more I think about this the more I agree with McCarthy:
If you think Roe is good law, if you think it was well reasoned, if you think it reached the correct result, then you are basically saying that you think it is proper for a handful of lawyers, bereft of compelling precedent, and without competence in dynamic and relevant disciplines like medical technology (while unable institutionally to become competent by holding hearings like Congress does), to impose their policy preferences on the American people, and thus insulate those policy preferences from the democratic process.So why don't Republicans take this nonsense head on and have the debate? 1) They believe in obeying the ethics rules. 2) They don't believe that such litmus tests should be part of the confirmation process, and they don't want to put judges they admire through this kind of smearing and attacks on their religion and their families. Yes, we should have the debate, but should we dump the whole thing onto the shoulders on a single nominee?
Unfortunately, opportunity for reasoned debate on Roe has been overwhelmed by the disingenuous rights-rhetoric of the Left, abetted by the Right’s self-defeating complicity. In the current clime, saying “I think Roe was incorrectly decided,” reduces the declarant to a caricature Cro-Magnon who would have “women forced into back-alley abortions,” as Senator Ted Kennedy (D., Mass.) slanderously said of Judge Robert Bork nearly two decades ago.