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How to Judge a Potential Justice

It is possible to ask a potential Supreme Court justice useful questions — if the senators involved want information, instead of an opportunity to make speeches.

by
Dan Miller

Bio

May 2, 2010 - 12:00 am
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What sorts of questions should judicial nominees respond to, beyond name, rank and serial number?

One absolute no brainer would be, “Do you support the U.S. Constitution and consider it the supreme law of the land, and in what general circumstances, if any, do you think it should not be upheld?” This is obviously a very open-ended question but one capable of being pursued to see where it leads.

Maybe something like this: “The Constitution tries to delineate the rights and powers of the federal government and the states. Without going into specifics, what are your general views on the delineation?” Or maybe something like this: “Most Supreme Court decisions are comprehensible only to attorneys. Is it possible to write decisions so that non-lawyers can understand them readily? If not, why not, and if so, how might you go about it?” These are hardly “softball” questions and do not solicit the sort of specifics no competent nominee could provide without endangering his ability to function as a justice.

One of the occupational hazards of political creatures is their apparently irresistible impulse to make speeches. This impulse should not be shared by members of the judiciary. Giving in to it would likely require a nominee subsequently as a judge or justice to recuse himself from considering many cases coming before him during a term of office limited only by a summons from the grim reaper.

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Dan Miller graduated from Yale University in 1963 and from the University of Virginia School of Law in 1966. He retired from the practice of law in Washington, D.C., in 1996 and has lived in a rural area in Panama since 2002.
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