Cornyn on Appropriate and Inappropriate Questions For Supreme Court Nominees

I hope to post shortly on the question of Elena Kagan's own statement about what kinds of questions nominees should be expected to be asked and to answer.  In the meantime, I think it is important to consider not only what Kagan believes a nominee should or shouldn't be asked by the Senate, but what the senators themselves think.  If a Senator has come to the principled conclusion that a nominee should not be asked certain kinds of questions, then it is a matter of principle, and it should be irrelevant what the nominee himself or herself thinks about whether those questions are appropriate.  I hope to provide some insight into what a variety of senators on both sides of the aisle have said about this issue, but let's start with Texas Senator John Cornyn.  I've provided a long treatment of that question after the jump.  Here's the short version: No matter what Kagan herself has said, Senator Cornyn clearly takes the view that, as a matter of law, ethics, and principle, he cannot ask her questions designed to elicit her views on matters that are likely to come before the Court, including questions about abortion.  And no matter what Kagan has said, Senator Cornyn is of the view that Kagan cannot answer those questions.  

Here's what he said to then-nominee Samuel Alito:

[Sen. Cornyn] And, you know, I've really tried to analyze for myself when is it
that judges and nominees are willing to go out on a limb, so to speak,
and say yes, that's settled law, or to talk more expansively about an
issue? And when is it that they feel less comfortable, less free,
more constrained by their ethical obligations or their desire to
preserve the independence of the judiciary?

And what I've concluded -- and I'd like to get your reaction to
this -- is the more settled, to use the word Senator Schumer has, the
more accepted in the society and our culture, the more free nominees
feel to talk about it.

But the more a nominee feels like this is an issue that not only
is going to come back, it's going to come back soon -- as a matter of
fact, it may be on the court's docket now -- the less free, the more
bound by your ethical obligations you feel, the more you feel it's
important to preserve your independence as a judge.

Senator Cornyn goes on to suggest that asking about, say, Brown of Board of Education, would be legitimate, but probing too deeply into the issue of abortion would not:

[Sen. Cornyn] But you do believe, and I think with good cause, that
there will be continuous attempts to address the abortion issue
because of its divisive nature and because Americans are so divided on
that issue, or at least some aspect of the issue.

To what extent, for example, can the Congress pass laws which ban
the barbaric practice of partial-birth abortion? To what extent can
Congress or the states pass laws that provide for minors to seek --
requiring them to provide their parents notice, with an appropriate
judicial bypass for those who are abused or neglected or abandoned by
their parents?

That is an issue that is at the forefront of America's
consciousness, and really, I think, sort of the subtext under which a
lot of the wars over judicial nominations are fought.

Senator Cornyn voiced similar views during the nomination of Chief Justice Roberts.  There, he suggested that nominees may be precluded from pronouncing on particular issues that may come before the court for both ethical and constitutional reasons, and that senators who keep asking questions designed to dig out a nominee's views on these issues are engaging in a futile hunt:

I want to talk to you a little bit -- well, first of all, before
we go there, I know one of the questions involved the Code of Judicial
Conduct and whether you were proscribed by that and the differences
between what you have felt at liberty to testify to and Justice
Ginsburg did.

CORNYN: But I noticed that in the commentary to Canon 5, the
Model Code of Judicial Conduct, the last sentence says this section
applies to any statement made in the process of securing judicial
office, such as statements to commissions charged with judicial
selection and tenure and legislative bodies confirming appointment.

Is that your recollection of the code's scope?

ROBERTS: Yes, Senator.

CORNYN: And I would ask unanimous consent that that be made a
part of the record.

SPECTER: Without objection, it will be made a part of the
record.

CORNYN: Thank you, Mr. Chairman.

And I won't dwell on this any more, about the numbers of
questions asked, but I know we're now up to about 66 questions that
you've responded to on the role of a judge and your judicial
philosophy, 48 on civil rights and discrimination, 44 on abortion and
privacy.

Let me ask you this: If we keep asking the same question over
and over and over again, but try to approach it from a slightly
different way, to get you to answer a question that you don't feel you
can ethically answer, are you going to give us a different answer? Or
are you going to give us the same answer?

ROBERTS: I hope my answer would be the same, Senator.

CORNYN: Well, I'm sure that's the case.

We talked about the Code of Judicial Conduct and your ethical
obligation. We've talked about the practical aspects of being a judge
and the importance. And I guess this is not just practical; it's
really a constitutional duty that judges have to maintain judicial
independence, even from the legislative branch by making commitments
of performance in office as a condition to your confirmation.

And Cornyn put the point extremely clearly in his opening remarks to Roberts at his confirmation hearings:

Let me close on an issue that several senators have already
mentioned today, and that is your obligation to answer our questions.

Of course, I share with all of my colleagues a desire -- and a
curiosity, really -- to know what you think about all sorts of issues.
All of us are curious.

But just because we're curious doesn't mean that our curiosity
should be satisfied. You have no obligation to tell us how you will
rule on any issue that might come before you if you're confirmed to
the Supreme Court.

It boils down to a question of impartiality and fairness. One
characteristic of a good judge is that they keep an open mind until
they hear the facts and hear the lawyers argue the case before them.
If you pledge today to rule a certain way on an issue, how can parties
to future cases possibly feel that they would ever have a fair day in
court?

Justice Ginsburg, as we've heard already, one of the last Supreme
Court justices confirmed by the Senate, noted not too long ago, "In
accord with long-standing norm, every member of the current Supreme
Court declined to furnish such information. The line each justice
drew in response to pre-confirmation questioning is crucial to the
health of the federal judiciary."

This has come to be known as the Ginsburg standard, although it
has been the norm for all nominees who come before the committee and
before the Senate for confirmation.

Now, I know some of the members of the committee will ask you
questions that you can't answer. They'll try to entice you to abandon
the rules of ethics and the long tradition described by Justice
Ginsburg.

But that should not concern you, Judge Roberts. Don't take the
bait. Do not head down that road, but do exactly what every nominee
of every Republican president and every Democrat president has done:
Decline to answer any question that you feel would compromise your
ability to do your job.


CORNYN: The vast majority of the Senate, I am convinced, will
not punish you for doing so. Rather, I'm convinced that the vast
majority of the Senate will respect you for this decision because it
will show you are a person of deep integrity and independence,
unwilling to trade your ethics for a confirmation vote.

So what does all of this mean for Senator Cornyn?  As I read his remarks, it suggests that Cornyn believes that as a matter of ethics and constitutional law, a nominee is barred from anwering any question "that [she] feel[s] would compromise [her] ability to do [her] job."  That includes an obligation not to answer any question designed to pry into how a nominee would rule on an issue likely to come before the Court, at least as long as the answer involves something other than strongly settled law.  And it specifically includes cases involving abortion. 

Note that Senator Cornyn is stating that all of this is a matter of the highest legal obligation.  He may take the view that in nominee Kagan's own view, it is appropriate for senators to ask these questions and for nominees to answer them.  But he has stated quite clearly that he believes that view to be wrong.  So, on any principled reading of his statements, he should consider it improper either to ask these questions or for Kagan to answer them -- or to be criticized for not answering them.  He should defend strongly her refusal to answer those questions, and criticize his colleagues if they ask such questions.  He is free to criticize her for having taken her initial position on what nominees can be asked in the first place, and for changing her views if in fact she refuses to answer such questions.  But he cannot ask her those questions or expect her to answer them. 

I'm sure Senator Cornyn will have experienced legal counsel.  More importantly, Cornyn has his own principles as a guide.  I'm sure Cornyn doesn't need to be reminded of his own strongly stated views, but in case he forgets I hope his counsel will remind him.  His counsel should hold Cornyn to his views and be equally stringent as Senator Cornyn was in urging Senator Cornyn not to "take the bait."  If Cornyn wants to ask these kinds of substantive questions, his counsel should urge him to explicitly acknowledge his previously stated views on this subject, and offer a principled reason, and not just a "tu quoque" excuse, for changing his mind on this subject.