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A Rejoinder on Candor

By Jack M. Balkin

One of the really enjoyable aspects of being an academic is the opportunity to challenge and question the viewpoints of colleagues. In that spirit, I am a bit puzzled by Brian?s post where he suggests that if Judge Sotomayor?s comments are used to ?derail her appointment,? candor will be the casualty, see here. As I and others have argued elsewhere, candor has long been a casualty of the judicial appointments process. Robert Bork, for example, is probably the most vivid example of a nominee whose candor was a key reason for his rejection by the Senate. I have read the transcripts of the confirmation hearings for virtually all of the modern nominees to the Supreme Court and it is pretty clear to me that Bork was more forthcoming with his answers than any nominee in recent history. To be sure, there were other political problems with Bork?s nomination, but his candor was certainly a major factor in his undoing. I think most scholars and commentators who study the judicial appointments process would agree with the statement that candor has not been considered a positive characteristic for Supreme Court nominees for quite some time. As evidence, we have unsurprisingly seen nominees since Bork that are ?stealth? candidates, or essentially blank slates. Furthermore, participants in the process such as our current vice president have described confirmation hearings as a ?kabuki dance? where no real information is learned about the nominee.

Though I am a subscriber to the school of thought that believes that judges, and particularly Supreme Court justices, are subject to political considerations in their decision-making, I do not begrudge Chief Justice Roberts for saying that judging is like calling ?balls and strikes.? To the contrary, it is my experience that many judges and justices honestly believe that they are deciding cases impartially and putting their own political preferences to the side. Instead, my complaint with respect to Chief Justice Roberts (which was mostly out of his control) is that he continued the trend of Supreme Court nominees without much of a paper record on which to evaluate them. To Obama?s great credit in selecting a nominee, Sonia Sotomayor, like Samuel Alito before her, has a long record on the federal courts (and in her various speeches) that we can evaluate. But my question for Brian is if we cannot evaluate nominees by their written and oral records, then what is left for the Senate to do? Perhaps Brian is simply critiquing the offensive use by interest groups of a single statement by Sotomayor and implicitly arguing that her statement is well within the mainstream of judicial and legal thought, but that has less to do with candor and more to do with the content of the statement at issue.

Full post as published by Balkinization on May 31, 2009 (boomark / email).