Cruz Digs for Judicial Nominees’ Views

Attention judicial nominees: Senator Ted Cruz (R-Texas) will want to know which U.S. Supreme Court justice's judicial philosophy—from the Warren, Burger or Rehnquist courts—is most analogous with yours.

And he’d like to hear about your take on the affirmative action ruling in Grutter v. Bollinger, 539 U.S. 306, 343 (2003), and state sovereign interests case, Garcia v. San Antonio Metro Transit Auth., 469 U.S. 528, 552 (1985). And when should a classification be subjected to heightened scrutiny under the Equal Protection Clause?

The written questions Cruz has submitted to judicial nominees in the first month of the 113th Congress gives a sneak peek into the focus of the freshman senator and former solicitor general of Texas, who is expected to be a force in the confirmation process.

“It shows Ted Cruz’s seriousness, in that he’s going to take his role seriously and is going to ask high-level questions and not just the typical questions from other senators,” said Washington lobbyist Vincent Eng of Veng Group, who has carved out a niche advocating for judicial candidates in the Senate. “The amount of questions and the complexity was surprising.”

Cruz and the other new freshman Republican on the Senate Judiciary Committee, Senator Jeff Flake (R-Ariz.), posed the written questions to judicial nominees who had their confirmation hearings before the committee last session. Those nominees are getting committee votes without new hearings this year, so the new senators got a chance to question them in writing.

Cruz asked nine questions ranging from presidential power to individual rights. Flake asked four multipart questions, focusing on “original-meaning originalism” for interpreting the Constitution and the commerce clause.

In contrast, the freshman Democrat on the committee, Senator Mazie Hirono, posed no questions of the returning nominees.

The judicial nominees took different approaches when it came to Cruz’s first question to each nominee – going to the heart of judicial philosophy.

Richard Taranto, a nominee for the U.S. Court of Appeals for the Federal Circuit, repeated what he said in his confirmation hearing when asked a similar question. Taranto ruled out all living judges, and then identified “the second Justice Harlan as a Justice whose overall record, to the extent I am familiar with it, seems to me to embody to a remarkable degree the aspects of judging that I prize.”

Robert Bacharach, a nominee for the U.S. Court of Appeals for the Tenth Circuit, simply concluded his answer with: “I cannot single out one Supreme Court Justice whose judicial philosophy is most analogous to mine.”

And Patty Shwartz, a nominee for the U.S. Court of Appeals for the Third Circuit, turned the question around and described how she would decide cases in front of her. “Any judicial officer who adopts this approach would have an analogous philosophy,” Shwartz wrote.

Comments

[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...