Proper Scope of Questioning of Supreme Court Nominees: The Current Debate

Publication Date: September 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Justice

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Abstract:

A recurring issue has been what kinds of questions are appropriate to pose to a Supreme Court nominee appearing at hearings before the Senate Judiciary Committee. Particularly at issue has been whether questions by committee members should seek out a nominee's personal views on current legal or constitutional issues, or past Supreme Court decisions.

In recent decades, most Supreme Court nominees have undergone rigorous questioning at their confirmation hearings on a wide range of subjects. Committee members have never reached formal agreement among themselves or with the nominees regarding the proper scope of questioning. Nevertheless, at most confirmation hearings the questioning has been relatively uncontroversial when it has focused on the nominee's (1) knowledge of the law, the Constitution, and past Court rulings; (2) "judicial philosophy," including his or her overriding objectives as a judge and general approach to judicial decision-making; (3) past writings or public statements (other than those made in judicial opinions) on social, economic, political, legal, or constitutional issues; and (4) past actions as a public figure.

More controversial, by contrast, has been the propriety of Senators asking, and nominees providing direct answers to, questions concerned with the views of nominees regarding (1) the soundness of particular Supreme Court rulings, including whether they should be overruled; (2) legal or constitutional issues not immediately pending but which might someday come before the Court; (3) the relative weight to give to competing constitutional values; and (4) issues addressed previously by the nominee as a judge (either as a Justice or a lower court judge).

There is general agreement in the Senate that Supreme Court nominees should not, in replying to committee questioning, signal how they might rule on a case that could come before them on the Court. Such constraint on the part of nominees appears called for by a judicial ethics canon which provides that a judge or judicial candidate "shall not ... with respect to cases, controversies, or issues that are likely to come before the court, make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office."

The issue of appropriate areas of questioning is set to be revisited on September 6, 2005, when the Senate Judiciary Committee begins confirmation hearings on the nomination of appellate court judge John G. Roberts, Jr., to succeed retiring Associate Justice Sandra Day O'Connor. Some Senators on the committee have said that in order to determine the fitness of nominees to serve on the Court, it is necessary that committee questioning elicit their views on topical legal and constitutional issues, as well as on past Supreme Court rulings involving those issues. Others, however, doubt the propriety of such questioning, maintaining that nominees' answers to questions which convey their personal views would interfere with their obligation to avoid appearing to make commitments, or provide signals, as to how they would vote as a Justice on future cases. This report will be updated at the conclusion of the Roberts confirmation hearings.