Walking into a punch
Andrew McCarthy argues that Judge Roberts, or any nominee to the Supreme Court, should answer questions about important Supreme Court precedents. McCarthy is correct in theory. There is nothing improper about answering questions regarding the merits of past Supreme Court decisions (as opposed to saying whether the precedents should be overturned). And the views of a nominees about past decisions may be of some value in asessing whether he or she should be confirmed (but not much value if the process is operating as it should because nearly all past decisions of interest will have been decided by a fairly close vote, so that whichever position the nominee takes likely will be within the "mainstream").
In my view, however, Judge Roberts should not answer such questions because the most recent Democratic nominee, Ruth Bader Ginsburg, refused to do so. McCarthy dismisses this concern as follows:
And please, could we stop whining about Justice Ginsburg’s confirmation process? She got the fast-track. She shouldn’t have. She was asked relevant questions, but she was allowed to get away with not answering them. Republicans took the foolish position that judicial philosophy was out-of-bounds, and she was confirmed in near unanimity. Too bad. That was a mistake. But it’s over — she’s on the court. The lesson is that a mistake is not a precedent. A mistake is not something you are required to repeat. Because the Republicans mishandled the Ginsburg confirmation process does not impose on Democrats some equitable duty to reciprocate the error.
But the issue here isn't one mistake; the issue is a two decade-long pattern under which the two parties apply entirely different rules to the confirmation process. The Democrats play hardball. They check the movie rental records of Republican nominees, conduct filibusters, and insist that Democratic nominees be free to refuse to answer questions about past decisions. The Republicans eschew smear tactics and filibusters, and watch helplessly as the Democrats crucify nominees like Robert Bork, who naively attempt to engage the likes of Senators Biden and Kennedy in a reasoned discussion of the law.
If Judge Roberts starts answering questions about past court decisions, the Democrats grill him about dozens of decision. Then, they will use his answers, in distorted form, as a pretext for a filibuster. Perhaps certain answers, or the Democrats' interpretation of them, will strike a nerve with a few members of the self-appointed screening committee that is the gang of 14. Next thing you know, his confirmation is blocked.
The bottom line is that an academic discussion of the law makes sense only if both sides in the process are operating in good faith. For two decades the Democrats have failed to so operate. The added value of the information that can be obtained from the questions at issue is marginal compared to the importance of a confirmation process in which, other things being equal, Republican nominees and Democratic nominees have the same chance of being confirmed.
