The Refusal of Supreme Court Nominees to Discuss Legal, Political, and Social Issues at Senate Confirmation Hearings: Ethical Obligation or Survival Strategy?

38 Pages Posted: 2 Oct 2020 Last revised: 31 Jan 2022

See all articles by Ray McKoski

Ray McKoski

University of Illinois Chicago School of Law

Date Written: September 20, 2020

Abstract


Supreme Court nominees routinely refuse to discuss their personal views on legal, political, and social issues with members of the Senate Judiciary Committee. Nominees assert that judicial ethics rules prohibit them from discussing any issue that might come before the Court. So, abortion, the death penalty, presidential powers, racial equality, gender discrimination, the right to privacy, and many other issues of interest to the Senate and to the public are off limits at confirmation hearings. Contrary to the claims of those seeking a seat on the high court, judicial ethics codes do not prevent judges from expressing their personal opinions on legal, political, and social issues. Courts, judicial disciplinary bodies, and judicial ethics advisory committees all agree that judges may announce their views on the very subjects that Court nominees claim ethics rules bar them from discussing.

No one can blame high court candidates for refusing to discuss substantive issues. The only nominee to fully and freely answer questions posed by members of the Judiciary Committee was Judge Robert Bork. The Senate thanked Bork for his cooperation and openness by rejecting his nomination. Nominees should remain free to refuse to answer questions posed by senators. But the duties of candor and probity mandate that judges and lawyers advance a new, legally defensible justification for declining to discuss hot-button issues. In the absence of a new, more convincing rationale, nominees should simply admit that silence is the societal cost of increasing their odds of confirmation.

Keywords: supreme court; confirmation; senate judiciary committee; judicial ethics

JEL Classification: K40

Suggested Citation

McKoski, Ray, The Refusal of Supreme Court Nominees to Discuss Legal, Political, and Social Issues at Senate Confirmation Hearings: Ethical Obligation or Survival Strategy? (September 20, 2020). South Carolina Law Review, Vol. 73, No. 1, 2021, Available at SSRN: https://ssrn.com/abstract=3696086 or http://dx.doi.org/10.2139/ssrn.3696086

Ray McKoski (Contact Author)

University of Illinois Chicago School of Law ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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