The Refusal of Supreme Court Nominees to Discuss Legal, Political, and Social Issues at Senate Confirmation Hearings: Ethical Obligation or Survival Strategy?

37 Pages Posted: 2 Oct 2020

See all articles by Ray McKoski

Ray McKoski

University of Illinois Chicago School of Law

Date Written: September 20, 2020

Abstract

This essay surveys the refusal of Supreme Court nominees to discuss judicial philosophy, past Court decisions, and personal views on legal, political, and social issues with members of the Senate Judiciary Committee. The review begins in 1955 with the nomination of John Marshall Harlan and concludes with the Senate confirmation hearing testimony of Justices Neal Gorsuch and Brett Kavanaugh.

Nominees decline to answer questions concerning public policy and substantive legal issues under the guise of “judicial ethics” restrictions including (1) judicial oaths of office, (2) codes of judicial conduct, and (3) judicial disqualification rules. An examination of these purported justifications discloses that they lack a sound legal basis.

The essay concludes by suggesting that nominees who refuse to discuss judicial philosophy, past Court decisions, constitutional issues, and public policy should either advance a new, legally defensible rationale or simply admit that their silence is necessary to avoid losing confirmation votes.

Keywords: supreme court; confirmation; senate judiciary committee; judicial ethics

JEL Classification: K40

Suggested Citation

McKoski, Ray, The Refusal of Supreme Court Nominees to Discuss Legal, Political, and Social Issues at Senate Confirmation Hearings: Ethical Obligation or Survival Strategy? (September 20, 2020). Available at SSRN: https://ssrn.com/abstract=3696086 or http://dx.doi.org/10.2139/ssrn.3696086

Ray McKoski (Contact Author)

University of Illinois Chicago School of Law ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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