WASHINGTON (CN) – When it came time for Senator Richard Blumenthal to ask questions of U.S. District Court for the Eastern District of Louisiana nominee Wendy Vitter at her April confirmation hearing, the Connecticut Democrat began with a seemingly simple inquiry about one of the Supreme Court’s most well-known decisions.
“Mrs. Vitter, do you believe that Brown v. Board of Education was correctly decided?” Blumenthal asked.
Vitter paused, then looked at Blumenthal as she answered.
“Senator, I don’t mean to be coy, but I think I get into a difficult area when I start commenting on Supreme Court decisions, which are correctly decided and which I may disagree with,” Vitter said. “Again, my personal political or religious views I would set aside. That is Supreme Court precedent. It is binding. If I were honored to be confirmed I would be bound by it and of course I would uphold it.”
Blumenthal paused, then restated his question.
“Do you believe it was correctly decided?”
Vitter’s response changed only slightly.
“And again, I would respectfully not comment on what could be my boss’s ruling, the Supreme Court,” Vitter said. “I would be bound by it and if I start commenting on, I agree with this case or don’t agree with this case, I think we get into a slippery slope. If I’m honored to be confirmed I would be bound by Supreme Court precedent and that’s what I would follow, and Fifth Circuit precedent.”
Two weeks later, Fifth Circuit nominee Andrew Oldham gave a very similar answer to the same questions from Blumenthal, saying the code governing the conduct of judicial nominees prohibited him from weighing in on the landmark decision that ended racial segregation in schools.
“Senator, if I appeared before you as a private citizen, unbound by the canons of conduct that apply to United States judges, I could give you a yes or no answer,” Oldham said. “But because I’m a judicial nominee, I’m not allowed to comment on the merits of Supreme Court cases.”
Blumenthal cut in: “So you think it may have been incorrectly decided?”
“Senator, even the most universally accepted Supreme Court case is outside the bounds of a federal judge to comment on,” Oldham answered.
Videos of Vitter and Oldham’s answers quickly circulated on social media, with civil rights groups arguing that the nominees’ refusal to comment on merits of the case should be disqualifying. The Senate Judiciary Committee advanced both nominees on Thursday, launching a broader debate about what judicial nominees can and should say during their nomination process.
The Codes That Bind
There are two related ethical provisions that support the nominees’ contention that they cannot comment on Supreme Court cases.
Rule 2.10 of the American Bar Association’s Model Code of Judicial Conduct forbids judges from making “any public statements that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court.”
Relying on the ABA’s code, the Judicial Conference of the United States has similar ethical proscriptions called the Code of Conduct for United States Judges. Canon 3A(6) forbids judges from making “public comment on the merits of a matter pending or impending in any court.”
All federal judges are bound by the Judicial Conference’s code, whose introduction says it “is designed to give guidance to judges and nominees for judicial office.”
As to whether there are limits to the public-comment prohibition, the source itself declined to comment. Only judges can request advisory opinions about the code, a representative for the conference said.
But liberal groups and Democrats insist that the importance of Brown should free nominees to affirm its correctness without concern for spoiling their impartiality.
Calling the Brown ruling a “well-established majority opinion,” Todd A. Cox, policy director at the NAACP Legal Defense and Educational Fund, said that Oldham and Vitter’s answers signaled an open season on other settled Supreme Court precedent.
“I think they’re trying to signal, perhaps trying to signal, that these federal judges who are going to the bench are going to consider this historic case up for renegotiation as well as the legacy legal protections that float from it,” Cox said in an interview.
Taking a more charitable view of the nominees’ silence, however, professor Charles Gardner Geyh from Indiana University’s Maurer School of Law said that weighing in only on settled cases still opens a bigger door.
“Then they’re exposed if they have to talk about, well, what cases do you think are unsettled,” Geyh said.
Sen. Ted Cruz, R-Texas, called out Democrats last week for their focus on the Brown question.
“There is a reason that nominees are not answering the question do you believe Brown v. Board was rightly decided,” Cruz said. “And the reason is that it leads inevitably to the slippery slope of the next decision and the next decision and the next decision. What this discussion is about, what the high dungeon is about, is not Brown. But what this discussion is about is Roe v. Wade, what this discussion is about is the Obergefell decision, what this discussion is about is Citizens United, what this discussion is about is the Heller decision.”
Recalling the failed Supreme Court nomination of Robert Bork in 1987, Geyh said Vitter and Oldham likely were thinking pragmatically about their nominations, not about renegotiating precedent, when they declined to unpack Brown.
“I’m not sure it’s that they’re hiding their hostility to settled cases, I think what’s more likely is that they don’t want to start down that road,” Geyh said. “And they understand something post-Bork, and the White House understands something post-Bork, which is that refusing to answer questions has never resulted in a rejection.”
Back in 1987 the Senate rejected Reagan’s appointment of Bork after a brutal battle in which Bork was remarkably candid when discussing his ideology with lawmakers. Geyh said Bork’s rejection was a “high water mark” in the process because it was the first time the Senate rejected a nominee solely on ideological grounds.
“In the aftermath of that, judge nominees became much more reserved, and it was found to be kind of a successful strategy so that you have judges saying less and less and less,” Geyh said. “And with Trump’s nominees I think they’re trying to say even less still, saying that they’re not going to even go down the road of talking about settled cases.”
Marla Greenstein, the executive director of the Alaska Commission on Judicial Conduct, also supported the trend of nominees keeping quiet about precedent. Even with precedents to which no direct challenge is likely, Greenstein noted, future cases might touch on smaller legal principles in the decisions that are more disputed. Commenting on the correctness of a specific opinion would improperly prejudge a matter that might come up in court, she said in an email.
Getting Real Answers
More troublesome for Geyh, however, is the possibility of nominees using the ethical codes to parry questions they don’t want to answer.
“My view of the matter is that the Senate does have a job to perform here, and part of that job is to make sure that the nominee is committed to the rule of law,” Geyh said. “And if the nominee effectively refuses to say anything more than the pablum response, yeah, I support the rule of law, I’m an umpire, that may not be enough.”
Without the Senate taking a stand for more transparency, Geyh said, the nomination process will continue to be little more than a formality.
“Until the Senate stands up and says, look, you’ve got to play by our rules some,” he said, “you’re going to see nominees using these somewhat bogus lines to just sort of not even talk about their philosophy, not even talk about general areas where we’ve reached consensus as a public, as a people, about certain rights to equal protection, certain due process rights, certain rights about the powers of government.”
One member of the Judiciary Committee who appears to have taken up that call is Senator John Kennedy.
Himself a former law professor, Kennedy often attempts to drill deeply into nominees’ legal philosophy with more academic questions, such as asking a nominee how they would interpret a hypothetical statute. While Kennedy has said it is inappropriate to ask nominees about specific cases, he has also said he will not vote for any more nominees who refuse to stay in the box for his more general questions on their theories of the law.
“I’m not interested in asking the nominees to tell me how they would vote on a particular case,” the Louisiana Republican said in an interview Thursday. “That would violate the judicial canon of ethics and, I think in my judgment, good sense. But I am interested in discussing a nominee’s philosophy of law, how they approach deciding cases. I’m interested in testing their knowledge of constitutional law and I expect my questions to be answered.”