Paul Horwitz responds to Robby

MOJ-friend Paul Horwitz sent in some thoughts, responding to Robby's recent post about the Kagan nomination:

In his discussion of the Kagan nomination, Robert George writes: "[A]s Kagan herself noted in relation to previous Supreme Court nominees, it is imperative that she answer questions about particular issues, including abortion, marriage, and the role of religious faith in American public life. For her to decline to answer such questions would be not only to contradict herself but to undermine the valuable opportunity for a serious discussion of the role of courts that her nomination presents."  He adds: "Because I know Solicitor General Kagan to be a person of integrity, I do not expect her to attempt to evade questions whose legitimacy she affirmed when the nominees of previous presidents were under consideration."

I find Professor George's comments fair-minded and eloquent.  Assuming he shares Kagan's views that a nominee can be asked and must answer questions of the kind he has listed, there is nothing wrong with his stating those views.  I just want to add one note, which I think Professor George should agree with.  The important question is not what Kagan herself has said about appropriate or inappropriate questions for nominees, but what the Senators themselves, who after all are bound by their constitutional oaths, believe to be appropriate or inappropriate questions.  For example, Senator Charles Schumer has stated a view similar to George's own apparent views, and it would be inappropriate for him to object to substantive questions from his colleagues about Kagan's views on abortion and other issues.  On the other hand, Senator John Cornyn has made quite clear that he believes that a nominee's personal views about abortion and other issues are irrelevant to her fitness for the bench, and that senators are not permitted to demand that a nominee ask questions that constitute a commitment to rule a particular way on cases that may come before the Supreme Court.  He has made equally clear that these views are based on his understanding of the Constitution, and thus his oath, and thus that they are indefeasible.  He should thus consider himself barred from asking Kagan the kinds of questions George wants him to ask -- notwithstanding anything Kagan herself may have said about what kinds of questions nominees may be asked or answer.  That does not mean he can ask nothing: he has made clear that he thinks broad questions about a nominee's views of the Court and the rule of law are appropriate.  But on his own principled view, he is more constrained than George's own remarks suggest he would prefer.  And because those views are grounded in the Constitution and the oath itself, he is not entitled to change them just because any Democratic senators have taken a different view then or now, or even because Kagan herself has suggested that some such questions might be appropriate.

Again, I respect Professor George's views.  Many people believe that nominees can or must be asked substantive questions about their positions on various sensitive issues.  But the touchstone for any sitting senator must be their own view of what the Constitution requires, allows -- or prohibits -- in asking questions of judicial nominees or expecting answers.  These views are non-delegable.  If some Republican (or Democratic) senators believe as a constitutional matter that they cannot ask Kagan her personal views on abortion, or consider those views in voting for or against her, or ask her to commit to a particular view on abortion cases that might come before the Court, or (as Cornyn does) that she is entitled to an up-or-down vote, they cannot use Kagan's own views as a justification for changing their sense of what is constitutionally required or prohibited.  There may be much room to accuse various persons -- most certainly including Kagan herself -- of inconsistency depending on how they behave during the confirmation process.  But our first and last question must be, not what the nominee herself thinks about the process, but what we, or the senators charged with constitutional responsibility in this area, believe is required or prohibited by the law.  If that means some Democratic senators, such as Senator Schumer, are not entitled to complain about Kagan being asked substantive questions, so be it.  Conversely, if that means some Republican senators, such as Senator Cornyn, are not entitled to ask such questions or to deny Kagan a vote if she fails to answer them, then, again, so be it.