Friday, July 15, 2005

Nomination Watch on Judicial Philosophy

Luckily, some Senators recognize that the Senate has an obligation to find out about a nominee’s philosophy. As the blog ThinkProgress noted, Senator Arlen Specter (R-PA), Chairman of the Senate Judiciary Committee, wrote in his autobiography that Senators should ask nominees about their judicial philosophies, and that nominees must answer or risk rejection by the Senate.
Well, I'm not sure about this idea. I think I agree, but I'm afraid my definition of judicial philosophy may be different from this author, and unfortunately the term is not explicitly defined. I suspect that for this author questioning about judicial philosophy means asking questions about what a nominee's opinion of a specific case is. It is my opinion that a nominee cannot answer such questions truthfully until the questions are actually presented and debated between the justices. Further, I don't think such questions are questions of judicial philosophy. In contrast, I think questions about judicial philosophy should attempt to discover whether the nominee believes the Constitution lives and breathes by the preferences of Supreme Court justices, or whether the nominee believes the Constitution is "living" because it includes a formal process by which it can be amended. I think such a question is about judicial philosophy, while questions of the first sort seem to me questions about judicial politics.

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