Kinsley on the "reticence fallacy"

Posted by Chris

Indeed:

Gosh, was it only a couple of weeks ago that Republicans were mocking attempts by Democratic senators to find out what John Roberts's views might be on some of the big legal issues? What happened to all those lectures about how it would be "improper" to call on a future justice to "prejudge" matters that might come before the court?
[. . .]
The widely alleged principle that judicial nominees should not comment on specific cases is based on a fallacy familiar to journalists from our own battles over objectivity: that not expressing an opinion means that you don't have one. In the case of judges, an absence of opinions is not just improbable -- it is undesirable. Anyone worthy of sitting on the Supreme Court ought to have thought about all the big issues and ought to have reached some kind of conclusion about them.

The anathema on "prejudging" also has a comically wide loophole: It doesn't apply to sitting justices. A few years from now, the views of Justice Roberts and potential Justice Miers will be known on a wide variety of important legal issues, just as the views of the other seven justices are known now. No one suggests that this fact disqualifies sitting justices from ruling on the same subjects in the future.

The current process seems only to succeed in filtering out anyone who is willing to give an honest statement of his or her views on substantive legal questions. I'm not sure how to get around that, though, and this is a thoroughly bipartisan problem.

Perhaps, as Kinsley suggests, bipartisan discomfort over Miers might be strong enough to result in an insistence that she answer some damn questions. If Senators can grow up just a bit, we might just have a precedent here, whether she's confirmed or not.

Posted by Chris at October 9, 2005 11:54 AM