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Debate: Supreme Court Candidates

 
 
Reply Thu 29 Sep, 2005 12:51 pm
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.

Thanks, Trnkabob
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Type: Discussion • Score: 2 • Views: 894 • Replies: 6
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Brandon9000
 
  1  
Reply Thu 29 Sep, 2005 02:08 pm
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?
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joefromchicago
 
  1  
Reply Thu 29 Sep, 2005 03:06 pm
Brandon9000 wrote:
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.

trnkabob wrote:
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.
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Steppenwolf
 
  1  
Reply Thu 29 Sep, 2005 05:11 pm
joefromchicago wrote:

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 suppose it depends on how much you want to insulate the judiciary and the constitution from the legislature. What if nominees did answer every question, and the majority of the senate categorically refused to confirm any nominee who wanted to uphold Roe (or vice versa)? Are you comfortable giving the legislature the power to pick and choose between settled precedent? What if the senate refused to confirm any nominee that sought to uphold constraints on legislative power? There are good reasons to separate judicial and legislative functions - the advice and consent function shouldn't totally erode that wall.
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joefromchicago
 
  1  
Reply Fri 30 Sep, 2005 08:01 am
Steppenwolf wrote:
I suppose it depends on how much you want to insulate the judiciary and the constitution from the legislature. What if nominees did answer every question, and the majority of the senate categorically refused to confirm any nominee who wanted to uphold Roe (or vice versa)? Are you comfortable giving the legislature the power to pick and choose between settled precedent?

As opposed to the president being in that position, as is the case today? I'd rather take my chances with the senate.

Steppenwolf wrote:
What if the senate refused to confirm any nominee that sought to uphold constraints on legislative power? There are good reasons to separate judicial and legislative functions - the advice and consent function shouldn't totally erode that wall.

The constitution sets up a system whereby the nomination and confirmation of judicial candidates involves an intersection between all three branches of government. If you don't like the legislative branch getting involved in the process, then you should advocate a change in the constitution.
0 Replies
 
Steppenwolf
 
  1  
Reply Fri 30 Sep, 2005 11:32 am
joefromchicago wrote:
Steppenwolf wrote:
I suppose it depends on how much you want to insulate the judiciary and the constitution from the legislature. What if nominees did answer every question, and the majority of the senate categorically refused to confirm any nominee who wanted to uphold Roe (or vice versa)? Are you comfortable giving the legislature the power to pick and choose between settled precedent?

As opposed to the president being in that position, as is the case today? I'd rather take my chances with the senate.

Steppenwolf wrote:
What if the senate refused to confirm any nominee that sought to uphold constraints on legislative power? There are good reasons to separate judicial and legislative functions - the advice and consent function shouldn't totally erode that wall.

The constitution sets up a system whereby the nomination and confirmation of judicial candidates involves an intersection between all three branches of government. If you don't like the legislative branch getting involved in the process, then you should advocate a change in the constitution.


Joe:

That's an oversimplification of my position. Who said I didn't want any legislative involvement? I simply advocate a different balance than you. And no, the "advice and consent" clause is simply too vague to definitively support either of our positions, so I take your constitutional argument ("you should advocate a change in the constitution") as somewhat tongue-in-cheek.

Ultimately, this is a policy question. I simply don't want the drafters of legislation to have undue influence on the judiciary. I cringe when I hear politicians on both sides of the aisle subtly inquiring whether Roberts might help them get rid of, for instance, U.S. v. Lopez. As far as balancing constitutional powers goes, the legislative branch is already part of amendment process (the president isn't), and that should be their exclusive means of altering constitutional law.
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Steppenwolf
 
  1  
Reply Fri 30 Sep, 2005 11:40 am
Oh, and as far as taking your chances with the senate, I've had about enough of their interference with the judiciary this term. When the constitution was written, the senate wasn't quite as tied to the whims of the majority. Nowadays, that chamber has become a beacon of populist pandering. I guess it comes down to choosing the lesser of evils.
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