A Long-Standing Norm

Senator Schumer is planning to use his seat on the Senate Judiciary Committee to reopen a battle he has already lost. "I voted against Judge Roberts for the D.C. Court because he didn't answer questions fully and openly when he appeared before the committee," Mr. Schumer said on Tuesday, referring to President Bush's nominee to the Supreme Court. But despite being rebuked by his colleagues for pressing inappropriate questions on Mr. Roberts when he was a federal appeals court nominee, Mr. Schumer has signaled he is going to revisit the same line of questioning. "It is vital that Judge Roberts answer a wide range of questions openly, honestly, and fully in the coming months," the senator said.

Mr. Roberts has been willing to answer questions about his judicial philosophy. "My own judicial philosophy begins with an appreciation of the limited role of a judge in our system of divided powers," he wrote in response to written questions from Mr. Schumer in 2003. "Judges are not to legislate and are not to execute the laws." But Mr. Roberts declined, in response to prodding from Mr. Schumer, to give his personal views in respect of particular decisions. "With respect, Senator, you're getting back in the area of asking me to criticize particular Supreme Court precedents," Mr. Roberts testified in 2003. "I think it's inappropriate because it would be harmful to the independence and integrity of the Federal judiciary. The reason I think key to the independence and strength of the Federal judiciary is that judges come to the cases before them, unencumbered by prior commitments, beyond the commitment to apply the rule of law and the oath that they take."

Explained Mr. Roberts: "When you offer those opinions, it will distort the process. It is either an effort to obtain a prior commitment for someone as a nominee about how they will decide the case, and I think that is very inappropriate, or it will have a distorted effect on how that judge will appear to parties appearing before him." That is, the principles of separated powers and an independent judiciary counsel against such an exchange with the Senate.

Here, Mr. Roberts was only following the example of previous nominees. As Senator Hatch, who was chairman of the Judiciary Committee at the time, noted, Justice Ginsburg also refused to answer such questions at her hearing. "Because I am and hope to continue to be a judge, it would be wrong for me to say or to pre view in this legislative chamber how I would cast my vote on questions the Supreme Court may be called upon to decide. Were I to rehearse here what I would say and how I would reason on such questions, I would act injudiciously," Ms. Ginsburg testified.

And Justice O'Connor, whom Mr. Roberts has been nominated to replace, testified at her hearing in 1981: "I feel that it is improper for me to endorse or criticize a decision which may well come back before the Court in one form or another and indeed appears to be coming back with some regularity in a variety of contexts." At that time, Senator Kennedy was on her side. "It is offensive to suggest that a potential Justice of the Supreme Court must pass some presumed test of judicial philosophy. It is even more offensive to suggest that a potential justice must pass the litmus test of any single-issue interest group," said the Massachusetts senator.

Indeed, as Justice Ginsburg observed in her dissent in Republican Party of Minnesota v. White, "In the context of the Federal system, how a prospective nominee for the bench would resolve particular contentious issues would certainly be 'of interest' to the President and the Senate. But in accord with a longstanding norm, every member of this Court declined to furnish such information to the Senate, and presumably to the President as well."

This long-standing norm was followed by no less a liberal icon than Thurgood Marshall (and we here at the Sun revere him no less than any liberal). Marshall, during his confirmation hearing in 1967, responded to a senator's question regarding the Fifth Amendment this way: "I do not think you want me to be in a position of giving you a statement on the Fifth Amendment and then, if I am confirmed, sit on the Court and when a Fifth Amendment case comes up, I will have to disqualify myself."

Mr. Schumer may want to do away with this long-standing norm. He may care more about his own political agenda than the independence of the judiciary. But there is something odd about Mr. Schumer's quest to do this in the name of protecting the court, something that rings basically false - sort of like Senator Kerry trying to wrap himself in the aura of the military at a time when he was counseling retreat in the war. What Mr. Schumer is doing is going up against constitutional bedrock, the idea of separated powers, and it will be illuminating to see whether he gets away with it.