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The battle for control of the federal judiciary is now raging in the Senate. The Democrats on the Senate Judiciary Committee are demanding that nominees to the bench state their views on important and controversial issues and claim the right to oppose anyone who does not answer their questions. In the case of Miguel Estrada, who has been nominated to the D.C. Circuit, they have been attempting to enforce their views by engaging in a filibuster that, as of this writing, has kept the full Senate from voting him up or down. The Estrada nomination will likely be decided by considerations of power and politics. But there is principle at work on both sides. On the one hand, the Constitution specifically provides for the advice and consent of the Senate. From that, some argue that the Senate cannot perform its duty without having whatever information it deems relevant, including the views of a nominee on the major legal issues of our day. On the other hand, Miguel Estrada has responded to questions about his views on such issues by declining to discuss them, since he might be seen to be prejudging cases that might come before him. Fortunately, there is also a principled way to balance those competing values. In short, nominees should be obliged to tell the Senate whatever they have already told the White House and Department of Justice during the vetting process. That’s only fair. And it’s also legal, as a very recent Supreme Court case indicates. A PRIMER FROM THE JUSTICES Last June the high court ruled 5-4, in Republican Party of Minnesota v. White, that states that elect their judges cannot, consistent with the First Amendment, bar judicial candidates from “announcing” their views on disputed legal or political issues, even if they might be called upon to pass on those issues as judges. As Justice Antonin Scalia wrote there, “A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason.” Although the Republican Party decision itself does not apply directly to appointed federal judges, at least two aspects of it bear on the issue of what information the Senate is entitled to have before voting on a nominee. First, the candidate and his party believed that the electorate was interested in those views, and Justice Scalia, joined by four Reagan and Bush appointees, agreed that the views of candidates on contested legal issues are “relevant information” for those who are selecting judges. Surely, if the views of someone running for election as a judge are relevant to a decision on whom to support, those same views are equally relevant when the selection is made by appointment and Senate confirmation, as is the case for federal judges. Second, everyone running for a high judicial office has views on some controversial legal issues, even if he or she has not publicly expressed them. Indeed, the majority relied on an early opinion of Chief Justice William Rehnquist, written shortly after he was appointed an associate justice, asserting that it would be unlikely for a person chosen for a high judicial office to have no views. Indeed, as Rehnquist wrote in Laird v. Tatum (1972), “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” As every lawyer knows, the views of judicial candidates are important. Often the cases, statutes, and text of the Constitution provide no clear answer. In those close cases, judges will inevitably be influenced by the personal and professional attitudes they have formed before going on the bench. For that reason, no president would instruct his staff to bring forward only the “most qualified” judicial candidates and to pay no attention to their views on any issues. That is why the vetting process is not limited to assessing the candidate’s professional qualifications and to making sure that they have no hidden scandals that could derail the nomination. Presidents want to be sure that their nominees share the same general views (and sometimes the same specific views) as they do. The difficult question is what to do when there is no record. BEING CAREFUL WITH QUESTIONS In seeking to learn the views of a potential federal judicial appointee, both the administration and the Senate must be careful not to ask candidates to commit themselves on an issue. Whether called a promise, a pledge, or some type of prejudgment, the right of future litigants to have judges who do not have closed minds on an issue is essential to a fair hearing. No one in either the majority or the dissent in Republican Party disputed that proposition. Rather, the justices disagreed on whether the Minnesota judicial rule banning certain speech by candidates for the bench went beyond pre-commitment, and so ran afoul of the First Amendment. Thus, in the context of federal judicial selections, if a nominee is pressured to answer a question out of fear that a failure to respond will result in a denial of confirmation, the temptation to say what he or she thinks the president or the Senate wants to hear may be too much to resist. Of course, words alone cannot describe what topics or questions should be off limits, which was another of the problems in the Republican Party case. The parties debated what could and could not said about a candidate’s “judicial philosophy,” or even what that term meant. But there is a line that can be drawn that is clear, enforceable, and responsive to the need to balance relevance and prejudgment. The issue of how far the questions should go most often arises during confirmation, not behind the closed doors of the White House vetting process. Thus, by the time a nominee appears before the Senate Judiciary Committee, the administration has already decided how much information it needs to decide to send the nomination forward and has, presumably, balanced that need against the dangers of prejudgment. Under those circumstances, there is one easily applied guideline that the Senate should adopt in deciding whether there is enough relevant information to vote on confirmation: It should have before it all the information about the views of the nominee that the president and his staff had in deciding whether to make the nomination. Thus, if the White House asks what a potential nominee thinks about abortion, the death penalty, states’ rights, or any other issue, the Senate should be entitled to obtain answers to the same questions to which the nominee responded when asked by those in the administration who were considering his appointment. If answering a question of a senator is improper pre-commitment, then so is answering the same question from the president or one of his advisers. And if the answers to those questions are relevant to a presidential nomination decision, then they are equally relevant for the Senate in its constitutionally mandated confirmation role. All nominees have views on important legal issues, and if they choose to disclose them to one party to the constitutional scheme for selecting federal judges, they should have to do so for the other. That’s simply a matter of equal access and fairness. Alan B. Morrison is director of the Public Citizen Litigation Group in Washington, D.C.

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