By John M. Rogitz

Another circus has begun in the Senate, as has been customary for all modern Supreme Court nominees. With the Kagan hearings now underway, it’s important to understand exactly how judicial ethics will impact her responses.

As we saw last year with Justice Sotomayor, Senators get very frustrated when a nominee does not directly answer their questions. They like to pepper nominees with questions about how the nominee would rule on this issue or that issue, even though many of the Senators are lawyers who know judicial ethics prevent the nominee from answering.

The simple fact is that, whether you’re a “conservative” judge or a “liberal” judge, you are forbidden from commenting on possible legal matters that may come before the Court in the future. Judges are supposed to remain impartial and apply the law to the particular set of facts in any given case.

It is precisely because most legal controversies are highly fact specific that potential justices are forbidden from answering general questions. Kagan should not have to feel external pressure to rule one way or another in the future because she interpreted the Constitution to generally mean X, Y, and Z at her confirmation hearings.

The whole FDA thing from yesterday’s session is a prime example. Kagan said it would be ridiculous for the government to make a law requiring you to eat three fruits and three vegetables per day. What more do you want from her?

But no, Senator Coburn wanted her to interpret the Commerce Clause against that hypothetical law, completely absent any fact-pattern for a particular individual bringing suit. Yet the same conservative Senators that get frustrated with her inability to answer questions like that still want her to, as they repeatedly assert, “only apply the law to the facts.” You can’t have it both ways, guys.

Now this is not to trivialize the Senate hearings. Each nominee for such a distinguished and important position should be vetted. Indeed, the Framers intended that. But these hearings were never meant to include the political grandstanding that now defines them.

In actuality, the Framers wanted a president’s nominee to be approved in most circumstances.  As Hamilton says in Federalist Paper 76:

“It is also not very probable that his nomination would often be overruled. The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination…the necessity of their [the Senate’s] concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity” [Emphasis added].

Elections have consequences.  As Federalist Paper 76 points out, the president should be allowed his choice if the individual is qualified.  The Senate confirmation was simply included in the Constitution to prevent unqualified nominees from taking the bench.

However, disagreeing with Kagan’s judicial philosophy does not make her unqualified. Making sure a candidate is qualified, as the Framers intended it, did not mean putting a nominee through weeks of rigorous confirmation hearings. It meant preventing Harriet Miers from becoming a Supreme Court Justice.

Do not interpret my position to mean that I am in favor of Kagan or her judicial activist philosophy. I’d much rather have another Justice Scalia or Justice Thomas. But McCain did not win the election and Kagan is indeed a bright and qualified individual.

Moreover, do not think I am laying blame wholly at the feet of Republicans for creating this circus. Both parties are to blame for what the Senate confirmation hearings have become. But the problem is that what they’ve become is exactly what the Framers did not want to happen.

In the context of why the Senate itself should not have the exclusive authority to nominate and confirm judicial appointments, Hamilton observed in Federalist Paper 76 that:

“Hence, in every exercise of the power of appointing to offices by an assembly of men, we must expect to see a full display of all the private and party likings and dislikes, partialities and antipathies, attachments and animosities, which are felt by those who compose the assembly. The choice [of the assembly]…will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight.”

The Framers were indeed concerned with the type of political bargaining and grandstanding that too often consumes the legislature. The Senate confirmation hearings are yet another example of how our Federal government continues to transform into precisely what the Framers tried to prevent.

COPYRIGHT 2010 JOHN M. ROGITZ