I'm not an expert, but it seems to me that if a future justice states in advance his opinions on an issue, he will later be forced to recuse himself on all trials involving that issue. Isn't that the basis on which they have always objected?
In general, it would be inappropriate for a judicial candidate to state an opinion on a case that might go before the court. So, for instance, if a case had been decided by an appellate court and could potentially be heard by the supreme court at some future date, it would have been inappropriate for Judge Roberts to have commented on that
case. But even that rule is subject to an exception: in the event that the candidate actually participated in the lower court case, his/her opinion on it would already be known (in that event, it would be rather silly for the judge to claim that s/he had no opinions on a case that s/he had already decided).
On the other hand, the practice of judicial candidates refusing to answer any
questions regarding cases -- even cases that have long ago been decided by the supreme court -- lacks any kind of ethical or professional basis. For instance, it doesn't make any sense for a judicial candidate to refuse to answer questions regarding settled supreme court precedents, like Roe v. Wade
. Asking a candidate what s/he thinks of Roe
is no more objectionable than asking the candidate what s/he thinks of the rule of stare decisis
(the rule that precedents ought to be followed by subsequent courts).
The settled precedents of the supreme court are, by and large, what constitute constitutional law in this country. If a candidate can't comment on those cases, s/he can't comment on much. For a candidate, then, to say that s/he won't answer questions about Roe
because it's a case that might come before the court again (or, in the case of Clarence Thomas, actually say that he had no personal opinion about Roe
!) is ridiculous. Every
case has the potential for coming before the court again (except for Dred Scott v. Sandford
, despite what Dubya might think).
A candidate is under no ethical or legal obligation to refuse to answer such questions. Nor is there any longstanding tradition of judicial candidates refusing to answer those questions. Candidates started dodging those questions only in the last twenty years or so, after the Bork debacle, and they did it for one simple reason: candidates were much more likely to get approved if they gave non-answers rather than "wrong" answers.
I'm going to be in a debate on the following topic:
The Congress of the United States should pass a law, and the President should sign the law, requiring any candidate for the Supreme Court of the United States to answer under oath any and all questions regarding his/her personal beliefs on any issue which any member of the Judiciary Committee of the Senate might choose to ask him or her.
I have not chossen a side and have never even done a debate before. Any tips, help or information will be appreciated.
Much like term limits and the balanced budget amendment, it's a dumb idea. The mechanisms in place for approving a candidate should be sufficient to force candidates to answer questions: we don't need a law to force the senate to do what it should be doing (and can do) already.