Apropos my previous posting on the ethics of questioning judicial nominees, I think folks may be interested in this brief article by Yale Law Professors Reva Siegel and Robert Post. They argue that we should question judges on how they would have ruled on already decided cases as a tool for determining their constitutional philosophy. They then defend their plan against Separation of Powers, Due Process of Law, Appearance of Impropriety, and Politicization of the Judiciary objections. Very interesting piece.
Responses are given by Erwin Chemerinsky (Duke), Laurence Tribe (Harvard), Steven Lubet (Northwestern), and Randy Barnett (Boston University). Of these, Professor Barnett's compelling criticism was my favorite (although Professor Lubet's statement that Antonin Scalia, as a nominee, had refused to answer questions about Marbury v. Madison on the grounds the case may be challenged in the future may have been the single most interesting nugget), though some of his objections were addressed in the responses of the other three. Essentially, he argues that judges should be pressed on their interpretation of particular constitutional clauses, not cases. The reason for this is primarily that a case-based approach a) will be results-oriented, because saying one would vote against X case implies to the public mind that they'd vote against X's real-world result, and b) will privilege the status quo, because the cases that will be selected will almost definitely be part of our constitutional canon/anti-canon and will require judges to proclaim their support accordingly. Fair points, but I think that his critique in some ways falls flat, because the problem it identifies is the problem inherent a process in which judicial nominee are confirmed by a polarized democratic body. Views which are anti-canonical or privilege the status quo are always going to be at a severe disadvantage--this is true regardless of whether we're talking about "lost constitution" libertarians on the right (like Professor Barnett) or Critical Race Theorists on the left. Asking about clauses may ameliorate this to some extent, but only because its more obtuse--it is easier to spin an interpretation of the 14th amendment in such a way that it makes opposition difficult (or more likely, difficult to articulate in a way that will be popularly compelling) than it is to explain why thinking Roe was wrong doesn't mean you oppose women's rights. This is the core dilemma, between transparency (which forces judges into mainstream centrism) and political awareness (which mandates some compromises if alternative legal perspectives are ever going to see light of day). There is no doubt it is a problem, but I feel that Professor Barnett only lays out the opposing side, rather than engaging in some sort of weighing mechanism that would let us adjudicate between the poles.
Professor Barnett comments further on his blog, as does Marty Lederman. Overall, very cool stuff.