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February 08, 2013

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Avon

None of us could say who on the planet is most like ourselves. There are too many aspects of any person; those we resemble in most ways may be different from us in deal-breaker ways. So I'd say Cruz's question is too vague for any one-name answer.

As for the idea that "advise and consent" means the same thing as "dictate a proxy appointee," that simply isn't what the Constitution says or means the Senate can do. Federal Judge is not a representative position, and certainly not a puppet one. The Senate should never be able to dictate specific constitutional-law rulings by its vote on nominees.

John Q. Public

Good for Cruz. There is no reason in the world judicial nominees should not be asked about how they would decide important legal questions. There should be no "stealth" nominees, whether conservative, liberal or otherwise. (Interestingly, that was the position advocated by then Professor Kagan, abandoned when she became a nominee to the Supreme Court.)

After Bork, White House advisers came up with the idea that nominees discussing their views would violate judicial canons of ethics. That is a vast overstatement of the rule, which forbids only making statements appearing to commit a nominee (or candidate, in jurisdictions with elected judges) to a given result should such a case later come before them. But there is no prohibition at all forbidding a nominee to disclose the functioning of his or her legal mind ("would you promise to vote to overrule Roe v Wade" would be out of line; but "describe for me your views about the scope and bases of the Constitutional right of privacy" would not). Concerns about the canon could be dealt with by prefacing answers with the observation that should a similar case come later to the court to which the nominee is proposed to be added, the nominee can foresee the possibility that different facts, or a more thorough treatment of the precedents, might point to a different result, and that the nominee would not feel later bound by the answer given to the question.

If I were a U. S. Senator, I would not ever vote to confirm a nominee who refused to tell me how he or she thinks and reasons. And, since the Founders who reposed the power to advise and consent in the Senate presumably understood that it is a political body, I don't think any Senator need apologize for taking a political perspective on the decision to grant or withold consent.

Hugo

Judges that steal power from legislatures, and who lie about the Constitution to do so, ought to at least be dragged before impeachment hearings. Why Congress overlooks everything but judges' private criminal conduct is beyond me. Impeachment hearings in the House would be a great start, even if there aren't the necessary two-thirds to send the case over to the Senate.

There was recently a case where SCOTUS set free 50,000 prisoners for the phony reason that there were too many prisoners in California to provide adequate medical care for. If SCOTUS had been honest, they would have only set free prisoners who were most likely to need medical care. There are about a million other examples.

Dissident

These guys are pretty slippery. Maybe Cruz should make the question multiple choice by picking 4 justices and and asking the nominee which one is closest to his or her judicial philosophy. Or provide a list in advance of 10 (non-serving) justices and ask the nominee to rank them.

Rick

I'm sure the quesitons from Cruz and Flake would be considerably easier if the candiates were nominess of a Republican president...

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