Mum's the word

As Jonathan Adler points out over here at Bench Memos, Senator Biden wanted Judge Roberts to answer some specific questions about his views on certain issues.

Most people seem to agree that Roberts is correct to hide behind the skirts of "well, that issue might come up before the Court". Adler says to answer might create an ethical problem:

More broadly, seeking to get judicial nominees to disclose their views on specific subjects — when it is clear that the answer to those questions will affect individual senators’ votes on the nominee’s confirmation — creates a context in which a nominee’s specific comments could be seen as a pre-commitment or promise to approach cases in a particular way should they be confirmed. This is what creates the ethical conundrum for nominees — and what differentiates answers given to senators in a confirmation hearing from a nominee’s prior writings.

I agree that it would be wrong to answer questions about specific cases, or specific situations that could and do arise in cases, but, as I wrote about here, I think judicial nominees should answer questions about general topics. For instance, do you think Roe v. Wade was correctly decided, given past precedents and your views on strict interpretation vs. judicial activism?

I wanted to come back to this issue, because the Roberts hearings have irked me again, and when I'm irked the rest of you have to suffer as well.

This is, in essence, a job interview, and in what other job interview are you not allowed to ask the prospective candidate how they would perform certain criticial functions of the job?

I don't agree that it would create ethical problems to answer general questions. We're looking to nominate a judge, we should be able to sound out their philosophy on how they would perform their duties.