The Joust Over Supreme Court Nominee Impartiality Begins Again

COMMENTARY Courts

The Joust Over Supreme Court Nominee Impartiality Begins Again

Oct 9th, 2020 3 min read
COMMENTARY BY
Thomas Jipping

Deputy Director, Center for Legal and Judicial Studies

Thomas is the Deputy Director of the Edwin Meese III Center for Legal and Judicial Studies and a Senior Legal Fellow.
Next week, don’t expect Democrats pushing for Barrett to fess up about her views on issues and cases to say why impartiality is less important for her than it was for others. ERIN SCOTT / Contributor / Getty Images

Key Takeaways

Directly or indirectly, Democrats will seek to determine how, if confirmed, Amy Coney Barrett would address certain issues they care about.

Almost everyone everywhere knows that judges should be independent and impartial.

One reason that Barrett will refuse to take the bait and pre-judge issues or cases next week is that she is protecting her present impartiality.

When Judge Amy Coney Barrett, President Trump’s Supreme Court nominee, appears before the Senate Judiciary Committee next week, some details will be different, but the joust will be similar to previous confrontations.

Directly or indirectly, Democrats will seek to determine how, if confirmed, she would address certain issues they care about. As both a sitting judge and a nominee, she will decline to give them what they want. Even if she did, they would oppose her. In the end, she'll almost certainly be confirmed.

It comes down to whether a judge’s impartiality is more important than the results she delivers from the bench. Ask almost anyone anywhere whether it’s okay for a judge to promise how she will rule in future cases. Ask them if, should they ever appear in a courtroom, judges should decide cases based on the law or their personal biases, opinions, or priorities.

I know what the answer should be, and so do Senate Democrats. Almost everyone everywhere knows that judges should be independent and impartial.

In fact, judges promise to be just that when they take office. As federal law requires, when Professor Barrett became Judge Barrett in 2017, she took an oath to “administer justice without respect to persons” and to “faithfully and impartially discharge and perform all the duties incumbent upon me.”

So one reason that Barrett will refuse to take the bait and pre-judge issues or cases next week is that she is protecting her present impartiality. Even if the Senate defeats her Supreme Court nomination, she will return to the U.S. Court of Appeals for the Seventh Circuit, where her independence and impartiality remain vital to the integrity of her service there.

Barrett is also protecting her future impartiality. In this, she joins dozens of previous Supreme Court nominees, by presidents of both political parties, who have taken the same position. In a 2018 article, then-Sen. Orrin Hatch (a Republican from Utah) documented how 29 of the 30 Supreme Court nominees who were asked about their views in their confirmation hearing refused to give in. Barrett will be in good company:

  • Felix Frankfurter, appointed by President Franklin Roosevelt in 1939, called it “improper” and “inconsistent with the duties of the office for which I have been nominated” to offer “personal views” or “declarations” to the committee.
  • John Marshall Harlan II, appointed by President Dwight Eisenhower in 1955, said that “it would be inappropriate for me … to express my views on issues that may come before me” and that doing so would cast doubt on whether he was even qualified to serve on the Supreme Court.
  • Thurgood Marshall, appointed by President Lyndon Johnson in 1967, said: “My position is, which in every hearing I have gone over is the same, that a person who is up for confirmation for Justice of the Supreme Court deems it inappropriate to comment on matters which will come before him as a Justice.”
  • John Paul Stevens, appointed by President Gerald Ford in 1975, said, “I think in good conscience I should do my best to avoid saying anything that might have an impact on the impartial treatment of this issue when it comes before the Court.”
  • Ruth Bader Ginsburg, appointed by President Bill Clinton in 1993, offered the most robust statement and explanation of this position: “Judges in our system are bound to decide concrete cases, not abstract issues. ... A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process.”
  • Sonia Sotomayor, appointed by President Barack Obama in 2009, said, “As I’ve indicated to you, opining on a hypothetical is very, very difficult for a judge to do ... and as a … potential Justice on the Supreme Court, but more importantly as a Second Circuit Judge still sitting, I can't engage in a question that involves hypotheses.”

There’s more where that came from. Next week, don’t expect Democrats pushing for Barrett to fess up about her views on issues and cases to say why impartiality is less important for her than it was for Sotomayor, Ginsburg, or the others. But if Democrats want to oppose Barrett because she refuses to “display disdain for the entire judicial process,” so be it.

This piece originally appeared in Washington Examiner