Ten Questions Senators Should Ask Prospective Judicial Nominees

Nominations hearings are predictable.  Half the Senators on the Judiciary Committee fawn over the nominees, while the other half pepper them with hypotheticals and questions they know the nominee won’t answer.  For their part, the over-coached nominees avoid all but the softest of softballs, while firmly resisting any attempt to actually probe their thought processes.  As an interview process for a lifetime appointment, the nominations hearing rarely yields genuine insights.

This state of affairs cannot be blamed on one particular entity or party.  Rather, both parties have, over time, contributed to the current playing field, where all nominees need to do is to avoid ticking off the 50 senators they need to get confirmed.  As such, one wonders: how can this performative exercise be more useful?  How can a nominations hearing better illustrate a nominee’s temperament, philosophy, and ideology?

To that end, here are ten questions that, if asked and answered in good faith, can lend some authenticity to the process.  Now, nominees are mindful, of course, of their ethical obligations, and are unlikely to answer any questions regarding privileged communications or about contested matters they are likely to hear.  With that in mind, senators should ask:

What is a legal, political, social, or moral position you previously advocated for that you no longer believe to be correct?

This is a question that I’m surprised hasn’t been asked more to nominees.  Unlike hypothetical questions about future cases, nominees are generally free to say: “I argued X in this case. I lost. And I now realize that the judge got it right.”  Furthermore, getting an answer to this question establishes two important things: first, it affirms that the nominee is willing to acknowledge when they got things wrong and they’re willing to grow from their mistakes; and second, it establishes that they are not set in their views. They’re willing to grow and evolve, an important characteristic to inculcate in someone seeking a lifetime appointment.

When was the last time you changed your mind on a legal, political, or moral issue after a discussion with someone who holds a contrary position?

Federal judges, insulated by lifetime appointments, are constantly at risk of ossifying in their legal views, particularly if those views are never challenged in discussions or arguments.  However, there are many federal judges who maintain their intellectual curiosity even after joining the bench and who are willing to engage with critics and contrarians to better understand and shape their views.  The answer to this question demonstrates both that: 1. the nominee has an open mind and is willing to change their views when they’re wrong; and 2. they’re willing to engage with those they disagree with.

Name a Time in Which You were able to convince another person of the validity of your view/position after a discussion.

A corollary to the previous question, this question also has the benefit of reinforcing the nominee’s ability to persuade others of the positions they hold, particularly important in appellate nominees.

Name a policy/law/regulation that you oppose as a matter of policy but agree is constitutional under current precedent.

The wisdom of a particular law and policy is often equated with its constitutionality.  While there are exceptions (eg. Justice Thomas’ concurrence in Lawrence criticizing the Texas ban on sodomy while finding it constitutional), it is increasingly rare for a judge to find that a policy they find strongly objectionable is not barred by the Constitution or caselaw.  Asking this question will demonstrate that a nominee can parse the difference.

The issue with the question, of course, is that it requires the nominee to make a statement acknowledging the constitutionality of a hypothetical law, which may be barred where a future challenge to that law may come before the judge.  However, as long as the question is focused on relatively uncontroversial areas of law, the nominee may be able to permissibly answer.

Name a policy/law/regulation that you support as a matter of policy but agree is unconstitutional under current precedent.

This is arguably an even harder question to answer than the previous one.  It would require a nominee to acknowledge the current structure of limited government set out in the constitution and note that it prevents, for better or for worse, the government from meaningfully intervening in many problems.  It is nonetheless important that a nominee is able to acknowledge this fact.

What is one thing you would seek to change about the court you’re about to join?

From reforms to PACER to cameras in the courtroom, the movement to democratize access to the federal court system is growing.  An answer to this question should show that the nominee is willing to recognize the shortcomings of the court systems they are seeking to join, to rethink old orthodoxy, and to challenge the status quo in service of justice.

What have you done so far to give back to your community as a lawyer?  What will you do as a judge?

The federal bench has been rightly criticized for setting itself apart from the communities it serves.  As such, nominees who demonstrate a connection with their communities, whether it’s through pro bono service, volunteer work, or other forms of engagement are particularly valuable.  Answering this question would also lead the nominee to demonstrate their willingness to continue such acts as a judge.

What is a bias/prejudice that you currently struggle with?  How do you work to overcome that prejudice?

This is an important question and one that’s asked too little.  While acknowledging any bias or prejudice is widely seen as career suicide, the bottom line is that human beings almost innately carry biases and prejudices with them, and it is only by acknowledging and working against them that one can overcome those prejudices.  Such prejudices do not have to be based on race, gender, or such immutable characteristics.  One could, for example, carry a bias against working moms, against city-dwellers, against west-coast rap fans, against those cheering the Red Sox, or against any identifiable group.  It is particularly important for judicial nominees to acknowledge their biases and work to overcome them given the power and influence they are seeking to take on.

What is a quality you have seen in a judge that you would seek NOT to emulate on the bench?

As awkward as it may be for nominees seeking a judicial position to acknowledge, judges are human.  They are sometimes short-tempered, and often wrong.  A nominee needs to be able to recognize that judges do err and that it is just as important to learn from the mistakes of others as it is to learn from one’s own mistakes.

What is the Biggest Mistake You Have Made in Your Career?  How Would You Seek to Avoid It on the Bench?

And finally, a question that encapsulates the others asked before. One that requires the nominee to demonstrate introspection, forethought, self-awareness, open-mindedness, and a willingness to get things wrong.  Like it or not, all lawyers make mistakes.  The best among us learn and grow from them and it is essential that our judges do as well.

With the nominations hearing of Judge Ketanji Jackson beginning today, it will be interesting to see if the hearings follow the predictable patterns laid out over the past two decades.  If any of the above questions are asked and answered in good faith, however, it will yield significant insight into Judge Jackson’s approach to the bench and the kind of justice she would be.

17 Comments

  1. A really good list of questions. I have to admit that I find the charade that is SJC questioning very frustrating to watch, because it seems premised on calculated deceit. Everyone knows what KBJ’s views on hot-button issues are, but she’s going to spend three days dancing around them because of the view that judicial ‘propriety’ forbids acknowledging that you do indeed hold a certain set of pre-existing views on constitutional matters.

    Say what you will about Bork, but at least he was prepared to argue the toss at his hearing. Equally, for all the invocations of the Ginsburg Precedent, RBG was more than willing to make clear what her view on abortion was, when asked about it.

    Liked by 2 people

  2. Republicans vow they won’t “get nasty” like the Democrats did with Brett Kavanaugh, but hope to excite their base by asking tough questions about criminal punishment issues and perhaps press her on what some of her supporters save said.

    Liked by 1 person

  3. Ted Cruz’s blabbering about children’s books today was ridiculous but all about exciting the Republican base, as was Hawley’s nonsense that isn’t even worth describing here. Not surprising that they’d focus on KBJ’s public defense background, but despicable nonetheless.

    Also (and not directed at you Mitch, just generally), it’s complete BS that Democrats were the “nasty” ones when Kavanaugh was the one foaming at the mouth like a deranged lunatic, all because he almost had to face consequences for the first time in his life for clearly having committed sexual assault. Republicans can’t get nasty because there’s nothing to get nasty about in KBJ’s background, unlike with Kavanaugh – can you imagine the field day they’d have if there was a record of her drinking underage?

    @livesofthelaw I agree that modern hearings are pointless and all for show these days. However, if Barrett didn’t answer a single substantive question and Gorsuch wouldn’t even say if Brown v. BOE was rightly decided, then KBJ doesn’t owe those Republican nutjobs on the SJC a damn thing.

    Liked by 1 person

  4. Is it just me, or does anyone else think that the KBJ SJC vote will be deadlocked and will need a dispatch vote on the floor? Graham’s 20 minute round was nearly as disgusting as his Kavanaugh screech. Damn you, Cal Cunningham!

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    • I still think there is a chance Tillis or Sasse will vote for her but that’s fine even if she deadlocks. She should be voted on in committee Thursday, April 7th. Schumer should file for cloture/discharge that same night. Either the cloture/discharge vote should happen late Thursday night or first thing Friday morning. The senate absolutely should NOT leave for the Easter recess before the confirmation vote even if that means a Saturday session.

      Liked by 1 person

  5. I listened to KBJ answer some of Alex Padilla’s questions. Padilla talked about voting rights (including Shelby County v. Holder and Brnovich v. DNC), criminal justice, the lack of BIPOC representation in federal court clerkships, and some other things. I turned the radio off as soon as Durbin announced it was Blackburn’s turn, as I knew that Blackburn made baseless accusations on Monday.

    I think pretty much every Senator besides maybe Manchin, Sinema, Collins, and Murkowski are already decided. I think Manchin and Sinema will vote to confirm unless she fucks up really badly. The chances of Collins voting to confirm are probably higher than 50-50. However, without any SJC support, the SJC seems likely to deadlock, unless Graham decides to pass or vote her out of committee despite opposing her nomination. Cornyn also voted her out of committee in 2021 despite voting against confirming her.

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  6. Hirono made a genius move in asking whether KBJ has had any sexual assault accusations. As expected, she has not, but it would’ve been poetic justice for her to say “Unlike some members of the Court [namely Thomas and Kavanaugh], I have no sexual assault accusations”.

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  7. Can I just say that Marsha Blackburn is probably the most intellectually deficient person to have ever spoken during a Supreme Court confirmation (and that’s saying something). KBJ has more intelligence in her pinky fingernail than three Marsha Blackburns combined – though one Blackburn is already too many. I would say it’s hard to believe she somehow actually got elected, but then again it is Tennessee.

    I’m just glad this whole charade ended yesterday and the world isn’t subject to more of her drivel.

    Liked by 2 people

  8. I’m still a little puzzled about the II. Panel yesterday, what was the purpose of it? There was an old lady who is Pro Life activist, and the daughter of Jamaica-born parents refering on Critical Race Theory. Among others. What can they effectively contribute or not to the confirmation of KBJ? I doubt that some of them have ever met her. Or are these people, who have been questioned by the FBI in the vetting process? Or from where have they been chosen from?

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    • The majority & minority parties each got to select whichever five witnesses they wanted. So the GOP tried to put up a couple of minorities, some women & a state attorney general to show all political & ethical stripes had opposition to the nomination.

      I believe the older woman was the only one that had a case she was directly affected by KBJ with her ruling on how close anti abortion activist can be to the abortion clinic.

      But they weren’t expecting the line of questioning from senator Whitehouse. Nor were they expecting the horrible answer from the Alabama attorney general. It’s pretty shocking that he couldn’t say Joe Biden was the duality elected president. That is why senator Whitehouse is so brilliant. He does his homework on even the witnesses testifying at the hearing. He completely discredited the witness, particularly after asking him the fourth time then saying “I have no further questions”. It was an example of saying more by saying less.

      Liked by 1 person

      • Whitehouse clearly knew how the Alabama AG would answer. The Alabama AG could have seriously destroyed the anti KBJ attacks if he claimed that Trump was the true winner of the 2020 election, so he simply went with the phrase “Biden is the president” that most of the congressional GOP resorts to when asked a similar question.

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