Legal Commentary

Like my last post, this post examines what the senators themselves, rather than the nominees, believe are appropriate or inappropriate questions for nominees to be asked or to answer.  The subject of this post is Senator Jeff Sessions.  As with Senator Cornyn, Senator Sessions has been quite clear that as a matter of principle -- and thus, absent a principled distinction, notwithstanding anything Elena Kagan has said about the confirmation process -- nominees should not be asked, and should not answer, questions that are designed to reveal a nominee's views on issues that may come before the Court.

Here's a lengthy excerpt of a colloquy between Senator Sessions and nominee John Roberts:

SESSIONS: But, at some point, you agree to sign on an opinion

one way or the other. Right?



And that becomes a decision of a judge and maybe the majority of

the court of maybe a dissent. But that's a decision that's made.



Isn't that why you should not, in this hearing today, blithely

start expressing opinions on complex matters when you haven't been

through that process and start prejudging matters before you've read

the briefs, before you've read the transcript, before you've heard the

arguments, before you've talked to your clerks, before you've

discussed it with other judges?



Isn't that the essence of what justice is, this careful process

that leads us to as fair result as humanly possible?



ROBERTS: I think that's perfectly accurate. And, if you had the

experience, as I know every judge and every justice has, of having

your original view changed when you read either the other side's brief

in a case after reading the opening brief, or had your view changed as

a result of the discussion at conference, or had your view changed

when you tried to write the opinion one way and it came out the other

way, then you appreciate the significance of that process.





ROBERTS: And it's a total distortion and a perversion of that

process to start out by saying, "Well, I testified under oath that I

thought this decision was correct.



So, "I'm done, you know. No need to read the briefs, no need to

listen to the arguments, no need to go into conference and talk with

the other judges on the bench. I have already given my view under

oath."



Or even if you are going to be open to reconsideration, to start

with that barrier, "I testified under oath that this is the correct

approach, that this is the right result. Now, maybe you can persuade

me otherwise."



Well, that's not the burden that the litigant should have to

take. The litigant should be able to know that all of the judges, all

the justices that, that person is arguing before have an open mind and

are fully open to the process.



SESSIONS: You wouldn't want to call Senator Biden and ask him

permission to change the commitment you made, would you, in that

hearing?



ROBERTS: No.



SESSIONS: Just a joke there a little bit.



(LAUGHTER)



You don't want to have to read a transcript of this hearing...



(CROSSTALK)



SESSIONS: ... by the time when you try to decide how to rule on

a case to make sure you didn't make some commitment.



I mean, I think that's all I wanted to -- the point I would like

to make there.



You know, Senator Specter came right out of the chute asking you

about stare decisis and Roe and other related-type matters and that's

an important question.



As I understand it, you committed to Senator Specter that you

would bring no hidden agendas to this matter, that you would consider

any case that came up under Roe or any other case that might impact

stare decisis and that you would apply reasonable, professional

analysis to that, drawing on the history of courts and their opinions

in dealing with these cases and would try to make a fair and honest

and objective decision.



Is that what I understood you to say?



ROBERTS: That's what I understood my testimony to be, yes,

Senator.



SESSIONS: And you are not saying, one way or the other, how you

would rule on Roe or some of the other cases that have been...



ROBERTS: No.



I feel that it would be very inappropriate for me as a nominee to

tell how I would rule on a particular case that might come before the

court.



SESSIONS: Well, I would like to know how you would rule on a lot

of those cases, too, but I didn't ask you when you came and talked

with me, and I don't think it's appropriate.



I don't think those of us who are politically conservative ought

to look to the courts to promote our conservative agenda through the

manipulation of interpreting words of the Constitution or statutes.





SESSIONS: I don't think liberals have a right to ask the court

to promote their agenda by twisting the plain meaning of words to

accomplish an agenda.



What we need is what you said -- an umpire, fair and objective,

that calls it like they see it, based on the discreet case that comes

before the judge. And I think that's most important.



And I would just say I don't know the answer to those questions

legally and how a law comes out, but I would just offer that our

polling data continues to show that our young people and numbers in

general are showing that the people are more hostile to abortion than

they used to be.



Perhaps it's seeing the sonograms and those kind of things, they

-- 75 percent, according to a Harris survey, said that they didn't

think an abortion was proper in the second trimester; 85 percent said

they didn't think it was proper in the last trimester.



I just saw an interesting article by Mr. Benjamin Wittes. He

writes for The Washington Post. He declares he's pro-choice, and

says, let go of Roe.



And he goes into an analysis of it. He says -- he said, "I'm not

necessarily thinking Roe ought to legally be overturned, but if it

does die, I won't attend its funeral. Nor would I lift a finger to

prevent a conservative president from nominating a justice who might

bury it once and for all."



This is in Atlantic Monthly, January of this year.



And he goes on to say, "Roe puts liberals in the position of

defending a lousy opinion. It disenfranchised millions of

conservatives on an issue about which they care deeply, while freeing

those conservatives from any obligation to articulate a responsible

policy that might command majority support."



He goes on -- as have others -- he goes on to say this, "The

right to an abortion remains a highly debatable position, both

jurisprudentially and morally."





SESSIONS: And he also noted that, "In the years since the

decision, an enormous body of academic literature has tried to put the

right to an abortion on firmer legal ground, but thousands of pages of

scholarship notwithstanding, the right to abortion remains a

constitutionally shaky proposition. Abortion policy is a question

that the Constitution, even broadly construed, cannot convincingly be

read to resolve."



So that's one opinion, I'm just saying, you will have to deal

with.



And I just don't think that we ought to take the view that, that

matter is open and shut.



And I hope that you -- we will take you at your word that your

mind is open and you will evaluate the matter fairly according to the

high standards of justice that you can bring to bear to that issue and

any others like it that come up.



Will you give us that commitment?



ROBERTS: Absolutely, Senator.



And I would confront issues in this area, as any other area, with

an open mind in light of the arguments, in light of the record, after

careful consideration of the views of my colleagues on the bench --

and I would confront these questions just as I would any others that

come before the court.



SESSIONS: Well, I'm of the view that the Constitution is a

contract with the American people, that developments will occur that

clearly fit within the ambit of a fair reading of that Constitution

that were never contemplated by the founders.



Things do change and we have to apply new circumstances.



But wouldn't you agree a judge should never make an opinion that

is beyond what a fair interpretation of the Constitution would call

for?



ROBERTS: Yes.



SESSIONS: Judge Roberts, thank you for responding to my

questions and to those of the other members of this body.



You have been open, honest and direct in providing a great view

of your judicial philosophy and how you approach cases.



I appreciate the fact that you have correctly avoided some

questions, some you should not answer. You hadn't read the briefs and

heard the arguments and thought about it -- but you have carefully

answered the appropriate questions, and we respect you for it.