Questioning Judicial Nominees: Legal Limitations and Practice

August 30, 2018 – March 17, 2022 R45300

Questioning Judicial Nominees:
March 17, 2022
Legal Limitations and Practice
Valerie C. Brannon
The U.S. Constitution vests the Senate with the role of providing “advice” and granting or
Legislative Attorney
withholding “consent” when a President nominates a candidate to be an Article III judge—a

federal judge potentially entitled to life tenure, such as a Supreme Court Justice. To carry out this
“advice and consent” role, the Senate typically hold
Joanna R. Lampe
s a hearing at which Senators question the
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nominee. After conducting the hearing, the Senate generally either “consents” to the nomination

by voting to confirm the nominee or rejects the nominee.

Many prior judicial nominees have refrained from answering certain questions during their
confirmation hearings on the ground that responding to those questions would contravene norms of judicial ethics or the
Constitution. Various canons of judicial conduct—self-enforcing, aspirational norms intended to promote the independence
and integrity of the judiciary—may potentially discourage nominees from fully answering certain questions that Senators
may pose to them in the confirmation context. These canons squarely prohibit some forms of conduct during the judicial
confirmation process, such as pledging to reach specified results in future cases if confirmed. However, it is less clear
whether or to what extent the canons constrain judges from providing Senators with more general information regarding their
jurisprudential views. As a result, disagreement exists regarding the extent to which applicable ethical rules prohibit
nominees from answering certain questions.
Beyond judicial ethics rules, broader constitutional values, such as due process and the separation of powers, have informed
the Senate’s questioning of judicial nominees. As a result, historical practice can help illuminate which questions a judicial
nominee may or should refuse to answer during confirmation. For example, recent Supreme Court nominees have invoked
the so-called “Ginsburg Rule” to decline to discuss any cases that are currently pending before the Court or any issues that
are likely to come before the Court. Senators and nominees have disagreed about whether any given response would
improperly prejudge an issue that is likely to be contested at the Supreme Court. Although nominees have reached varied
conclusions regarding which responses are permissible or impermissible, nominees have commonly answered general
questions regarding their judicial philosophy, their prior statements, and judicial procedure. Nominees have been more
hesitant to answer specific questions about prior Supreme Court precedent, especially cases presenting issues that are likely
to recur in the future. Ultimately, there are few available remedies when a nominee refuses to answer a particular question.
Although a Senator may vote against a nominee who is not sufficiently forthcoming, as a matter of historical practice the
Senate has rarely viewed lack of candor during confirmation hearings as disqualifying, and it does not appear that the Senate
has ever rejected a Supreme Court nominee solely on the basis of evasiveness.

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To safeguard “the complete independence of the courts of justice,”1 Article III of the U.S.
Constitution provides that “the Judges, both of the supreme and inferior Courts” of the United
States, “shall hold their Offices during good Behaviour” and receive a salary that “shall not be
diminished during their Continuance in Office.”2 By granting U.S. Supreme Court Justices and
other such “Article III” judges a guaranteed salary and “the practical equivalent of life tenure”
unless impeached, the Founders sought to insulate the federal courts from political pressures that
might influence judges to favor or disfavor certain litigants instead of neutrally applying the law
to the facts in each case.3
Because Article III judges ordinarily hold their positions for life, and because federal judges may
decide issues of great legal and political significance,4 the decision whether to elevate any
particular judicial candidate to the federal bench can be momentous.5 The U.S. Constitution
empowers the President to nominate candidates for Article III judgeships, but also vests the
Senate with the role of providing “advice” and granting or withholding “consent” with respect to
the President’s nominees.6 To carry out this “advice and consent” role, the Senate typically holds
a hearing at which Members of the Senate Judiciary Committee question the nominee.7 After that
hearing, the Senate generally either “consents” to the nomination by voting in favor of the
nominee’s confirmation or instead rejects the nominee.8
Ideally, “the questioning of nominees at confirmation hearings enables [S]enators to obtain useful
and indeed necessary information about nominees.”9 To that end, Senators commonly ask
questions that are intended to enable the Senate “to evaluate not only the nominees’
qualifications, but also their beliefs and probable voting patterns on the Court.”10 Such questions
frequently include inquiries “about specific cases, judicial philosophy, and attitudes on issues that
are likely to come before the Court.”11 Judicial nominees have often refused to answer certain
questions at their confirmation hearings, or have volunteered only perfunctory responses,

1 United States v. Hatter, 532 U.S. 557, 567 (2001) (quoting THE FEDERALIST NO. 78 (Alexander Hamilton)).
2 U.S. CONST. art. III, § 1.
3 See Hatter, 532 U.S. at 567–569; see also CRS Report R46731, Proposals to Modify Supreme Court Justices’ Tenure:
Legal Considerations, by Kevin M. Lewis.
4 See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc. 454 U.S. 464, 473
(1982) (“The exercise of judicial power ... can ... profoundly affect the lives, liberty, and property of those to whom it
extends.”).
5 See Sen. Charles McC. Mathias, Jr., Advice and Consent: The Role of the United States Senate in the Judicial
Selection Process, 54 U. CHI. L. REV. 200, 200 (1987) (“Among all the responsibilities of a United States Senator, none
is more important than the duty to participate in the process of selecting judges and justices to serve on the federal
courts.”).
6 See U.S. CONST. art. II, § 2, cl. 2 (“[The President] shall nominate, and by and with the Advice and Consent of the
Senate, shall appoint . . . Judges of the supreme Court, and all other Officers of the United States, whose Appointments
are not herein otherwise provided for . . .”) (emphasis added).
7 E.g., Robert F. Nagel, Advice, Consent, and Influence, 84 NW. U. L. REV. 858, 859 (1990) (“Beginning in 1959, with
the hearings on Potter Stewart’s nomination, senators have considered it proper to use the occasion of the nominee’s
appearance [at the confirmation hearing] to inquire about specific cases, judicial philosophy, and attitudes on issues
likely to come before the Court.”). But see Michael J. Gerhardt & Richard W. Painter, Majority Rule and the Future of
Judicial Selection, 2017 WIS. L. REV. 263, 266 (describing instances in which the Senate has opted not to hold a
confirmation hearing for a nominee).
8 Gerhardt & Painter, supra note 7, at 270.
9 William G. Ross, The Supreme Court Appointment Process: A Search for a Synthesis, 57 ALB. L. REV. 993, 1005
(1994).
10 Nagel, supra note 7, at 859.
11 Id.
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claiming that fully answering certain questions could violate various ethical norms that apply to
judges and judicial candidates12 or impair the independence or fairness of the federal judiciary.13
To name several notable examples, then-Judge Ruth Bader Ginsburg stated during her Supreme
Court confirmation hearing she could offer “no hints, no forecasts, [and] no previews” of how she
might rule on questions that might come before the Court.14 Similarly, then-Judge Antonin Scalia
refused to state his opinion on any prior Supreme Court decisions, declining even to discuss
Marbury v. Madison, the foundational case establishing the power of courts to review laws under
the Constitution.15 Some commentators and Members alike have expressed frustration regarding
nominees’ reticence to reveal their jurisprudential views during their confirmation hearings.16
While by no means the consensus view,17 some argue that if prospective judges refuse to divulge
how they will rule on controversial legal issues once they reach the bench, Senators cannot cast a
fully informed vote when deciding whether to confirm or reject the nominee.18
Although some wish that federal judicial nominees were more forthcoming during their
confirmation hearings, there is nonetheless “relative agreement among nominees, senators, and
commentators” alike that “there must be some limitations on a potential Justice’s answers” during
the confirmation process.19 For instance, most commentators agree that nominees should not

12 Tom Lininger, On Dworkin and Borkin’, 105 MICH. L. REV. 1315, 1324 (2007) (arguing that applicable rules of
judicial conduct “have generally provided many excuses for judges and nominees to dodge questions about substantive
matters”).
13 Dawn E. Johnsen, Should Ideology Matter in Selecting Federal Judges? Ground Rules for the Debate, 26 CARDOZO
L. REV. 463, 475 (2005) (“The nominees themselves frequently cite judicial independence concerns as a basis for
declining to answer questions.”).
14 The Nomination of Ruth Bader Ginsburg, To Be Associate Justice of the Supreme Court of the United States:
Hearings Before the S. Comm. on the Judiciary, 103d Cong. 323 (1993) [hereinafter Ginsburg Hearings] (statement of
Ruth Bader Ginsburg, J., U.S. Court of Appeals for the District of Columbia Circuit).
15 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803); Nomination of Judge Antonin Scalia, To Be Associate
Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 33
(1986) [hereinafter Scalia Hearings] (statement of Antonin G. Scalia, J., U.S. Court of Appeals for the District of
Columbia Circuit) (“I do not think I should answer questions regarding any specific Supreme Court opinion, even one
as fundamental as Marbury v. Madison.”).
16 See, e.g., Justin Wedeking & Dion Farganis, The Candor Factor: Does Nominee Evasiveness Affect Judiciary
Committee Support for Supreme Court Nominees?, 39 HOFSTRA L. REV. 329, 330 (2010) (“Legal academics,
journalists, and other judicial observers routinely criticize Supreme Court confirmation hearings as exercises in
obfuscation, where prospective justices give carefully crafted answers that reveal little about their views and opinions.”
(footnote omitted)); Lininger, supra note 12, at 1326 (noting that, during the confirmation hearings of Chief Justice
John Roberts and Justice Samuel Alito, several “Senators expressed exasperation that many matters of great importance
seemed to be off limits to discussion during the confirmation process”); Amy Goldstein, Paul Kane & Robert Barnes,
Sotomayor Avoids Questions About Her Position on Abortion, Other Issues, WASH. POST, July 16, 2009,
http://www.washingtonpost.com/wp-dyn/content/article/2009/07/15/AR2009071501114.html (describing Senators as
“frustrated” with Justice Sotomayor’s “long, elusive replies”).
17 For instance, some Members have instead taken the opposite position—that “answer[ing] questions about previously
decided Supreme Court cases” would create an undesirable appearance of bias and prejudgment in future cases. See
Lori A. Ringhand & Paul M. Collins, Jr., Neil Gorsuch and the Ginsburg Rules, 93 CHI.-KENT L. REV. 475, 479–83
(2018) (describing the positions taken by several members of the Senate Judiciary Committee during the confirmation
hearing of then-Judge Neil Gorsuch).
18 See, e.g., Lininger, supra note 12, at 1327 (“Plainly the present process for confirming Supreme Court nominees is
not ideal. This process allows nominees to assume a position of life tenure without meaningful prior screening of their
judicial philosophy by the Senate Judiciary Committee.”); Grover Rees III, Questions for Supreme Court Nominees at
Confirmation Hearings: Excluding the Constitution, 17 GA. L. REV. 913, 919 (1983) (“If . . . it would have been proper
for Senators to base their votes in whole or in part upon Justice O’Connor’s constitutional philosophy, then no Senator
could have cast an informed vote without access to information that was not in the record of the hearings.”).
19 Steven Lubet, Confirmation Ethics: President Reagan’s Nominees to the United States Supreme Court, 13 HARV. J.
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make “[e]xplicit or implicit promises” to rule in a certain way in future cases during their
confirmation hearings, as “such promises if sought and given would . . . compromise judicial
independence and due process of law” by depriving litigants of their constitutional entitlement to
a fair adjudicator.20 Those commentators further maintain that the integrity of the federal judiciary
would suffer if judges’ responses to Senators suggested that their “confirmation ha[d] been
purchased through the pledge of future conduct in office.”21
In an effort to ensure the proper conduct of judges and judicial candidates,22 judges and bar
associations have promulgated a variety of “canons” of judicial ethics: self-enforcing, aspirational
norms intended to promote the independence and integrity of the judiciary.23 Among other things,
these canons provide nominees with general guidance regarding which sorts of statements by
judges and judicial candidates are appropriate or inappropriate.24 As discussed below,25 most
commentators agree that the canons discourage federal judicial nominees from pledging to reach
predetermined results in future cases. However, scholars, nominees, and Members of Congress
have not reached a consensus regarding the extent to which ethical canons otherwise constrain
nominees from answering other types of questions at their Senate confirmation hearings.
Beyond canons of judicial ethics, historical practice reveals the constitutional norms that have
influenced what questions a federal judicial nominee may refuse to answer.26 Here, too, however,
different nominees have reached different conclusions regarding which types of responses are
improper.27 As a result, the boundaries between proper responses and improper responses remain
unsettled.
This report examines relevant considerations related to the questioning of judicial nominees. The
report begins by discussing applicable canons of judicial ethics that may discourage judicial
nominees from answering certain questions posed by Members of Congress.28 It then proceeds to
discuss which types of questions prior federal judicial nominees have answered or declined to

L. & PUB. POL’Y 229, 234–35 (1990) [hereinafter Lubet, Confirmation Ethics] (emphasis added).
20 Vikram David Amar, “Casing” Brett Kavanaugh: Why Senate Hearings Can and Should Explore His Views on Past
Supreme Court Cases, and at the Very Least His Views on Applying Originalism Where it Would Lead to Progressive
Results, VERDICT (Aug. 13, 2008), https://verdict.justia.com/2018/08/13/casing-brett-kavanaugh. Accord, e.g., Lubet,
Confirmation Ethics, supra note 19, at 235 (“[I]t may seem to future litigants that a justice is bound to a predetermined
outcome as a consequence of commitments apparently made during confirmation. This appearance of partiality should
be avoided in its own right.”).
21 Lubet, Confirmation Ethics, supra note 19, at 235.
22 For the purposes of this report, the term “judicial candidate” refers to “any person, including a sitting judge, who is
seeking selection for or retention in judicial office by election or appointment.” MODEL CODE TERMINOLOGY.
23 See infra “Codes of Judicial Conduct.”
24 See generally CRS Legal Sidebar LSB10189, Calling Balls and Strikes: Ethics and Supreme Court Justices, by
Cynthia Brown.
25 See infra “Codes of Judicial Conduct.”
26 See infra “Historical Practice.”
27 E.g., Lubet, Confirmation Ethics, supra note 19, at 234 (“[T]he nominees themselves have responded in widely
different fashion to inquiries from the Senate concerning their views of the law—ranging from Robert Bork’s
willingness to discuss legal issues at length and in detail to Sandra Day O’Connor’s virtual refusal to answer in any but
the most general terms.” (footnote omitted)); id. at 262 (“For every question that was declined by one justice-designate,
a comparable question was freely answered by another—if not the very same—nominee.”).
28 See infra “Codes of Judicial Conduct.”
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answer, focusing on nominees for the U.S. Supreme Court.29 The report concludes with some
takeaways for Members.30
Codes of Judicial Conduct
The federal judiciary, state courts, state legislatures, and various bar associations have all
developed codes of ethical standards intended to guide the conduct of judges and judicial
candidates.31 As explained below, many of these codes contain provisions that could discourage
nominees for federal judgeships from answering certain types of questions during their
confirmation hearings.32 Each of the ethical rules discussed below purports to constrain what a
federal judicial nominee may permissibly say during the confirmation process; none of the ethical
rules, however, affirmatively obligate nominees to respond to particular questions.33 Moreover,
the applicable ethical rules purport only to prohibit the nominee from answering certain
questions; they do not purport to prohibit Members from asking those questions.34
As the following sections explain, canons of judicial ethics are generally self-enforcing, with the
result that there is virtually no case law and only minimal commentary analyzing how these codes
of judicial conduct apply in the specific context of confirmation hearings for appointed federal
judges.35 Although it is possible to draw analogies from other contexts—especially statements and
promises that candidates for elected judgeships at the state level make during their campaigns—
neither the canons nor the advisory opinions interpreting them definitively address how the
various ethical rules apply in the specific context of a confirmation hearing before the U.S.

29 See infra “Historical Practice.”
30 See infra “Conclusion.”
31 See infra “The Code of Conduct for United States Judges”; “The ABA Model Code of Judicial Conduct.”
32 Note that ethical rules that purport to constrain judges and judicial candidates from stating their views on legal or
political issues may raise First Amendment concerns. See, e.g., Republican Party of Minn. v. White, 536 U.S. 765,
768–88 (2002) (invalidating state judicial canon that prohibited candidates for judicial election “from announcing their
views on disputed legal and political issues” on First Amendment grounds). The First Amendment implications of the
canons discussed herein are outside the scope of this report.
33 See, e.g., Lininger, supra note 12, at 1324 (“[T]he ethical rules for judges do not presently include any obligation that
judges or judicial candidates must forthrightly disclose their judicial philosophies in confirmation hearings . . . . A
candidate for judicial office could comply fully with existing rules by declining to make any statement concerning his
or her own views. Even an evasive answer to a question about the candidate’s views could be compliant with the
present ethical rules for judges, provided that the answer does not make any affirmative misrepresentations.”); Lubet,
Confirmation Ethics, supra note 19, at 251 (arguing that “silence” is “permitted by the Code”); N.D. Family Alliance,
Inc. v. Bader, 361 F. Supp. 2d 1021, 1044–45 (D.N.D. 2005) (“There is certainly nothing in this opinion that requires
any judicial candidate to respond to [questions about his or her jurisprudential philosophy].”) (emphasis added); Kan.
Judicial Review v. Stout, 196 P.3d 1162, 1176 (Kan. 2008) (per curiam) (explaining that “judges and candidates for
judicial office” are “not in any way required to” respond to questionnaires “call[ing] for the candidate’s personal views
on disputed legal or political issues”).
34 See, e.g., CODE OF CONDUCT CANON 3(A)(6) (“A judge should not make public comment on the merits of a matter
pending or impending in any court”) (emphasis added); MODEL CODE RULE 4.1(A) (“A judge or a judicial candidate
shall not . . .”) (emphasis added).
35 See Steven Lubet, Advice and Consent: Questions and Answers, 84 NW. U. L. REV. 879, 880 (1990) [hereinafter
Lubet, Advice and Consent] (“Notably absent from the entire debate [over the proper scope of questioning a judicial
nominee] has been any consideration of the Model Code of Judicial Conduct . . . [I]t is essentially treated as if
nonexistent in the other literature on Supreme Court selection.”); Lininger, supra note 12, at 1323 (criticizing an
account of the Supreme Court confirmation process for failing to “pay[] enough attention to the role of ethical rules for
judges”).
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Senate. Further complicating matters is the fact that not all of the canons discussed below apply
equally to all nominees.
Perhaps for these reasons, judicial nominees, Members of Congress, and commentators have not
reached a consensus regarding the precise range of responses that are permissible under the
relevant canons of judicial conduct. Some nominees have suggested that ethical considerations
prohibit judicial candidates from making virtually any statement about any legal issue that could
conceivably come before the federal judiciary.36 Some scholars, by contrast, take the opposite
position—that the applicable canons “impose[] surprisingly few restraints on the scope of a
nominee’s responses.”37 According to that view, “a nominee’s answers before the Senate
Judiciary Committee[] will violate” the applicable codes of judicial conduct “only where they
evince a settled intention to decide certain cases in a certain manner,” such as “promising to reach
a predetermined outcome” in a future case “irrespective of the arguments of the parties or the
discrete facts of the presented case.”38 Other commentators take the intermediate position that the
applicable ethical rules grant judicial nominees the flexibility to “make a personal judgment about
how to fulfill the ethical requirements of the role of a judge in responding to questions posed by
Senators during the confirmation process”—and, thus, a personal judgment about which types of
responses would or would not run afoul of ethical norms.39
The Code of Conduct for United States Judges
The first set of ethical standards that applies to questioning judicial nominees is the Code of
Conduct for United States Judges (Code of Conduct) promulgated by the Judicial Conference of
the United States (Judicial Conference).40 The Code of Conduct “prescribes ethical norms for
federal judges as a means to preserve the actual and apparent integrity of the federal judiciary.”41
It contains a number of ethical “canons” intended to “provide guidance to [federal] judges and
nominees for judicial office” regarding proper judicial behavior.42 By its terms, the Code of
Conduct “applies to” most Article III judges, including “United States circuit judges” and “district
judges.”43 The Code of Conduct does not apply to Justices of the Supreme Court.44 The Code of

36 See Lubet, Confirmation Ethics, supra note 19, at 241 (“As candidates for appointment, Justices O’Connor and
Scalia took the position that virtually all legal issues may eventually be heard by the Supreme Court and that no
nominee should express any view on most questions of law.” (footnotes omitted)).
37 Id. at 237.
38 Lubet, Advice and Consent, supra note 35, at 882. Accord Steven Lubet, Questioning Ethics, 115 YALE L.J. POCKET
PART 61, 61 (2006) [hereinafter Lubet, Questioning Ethics] (arguing that the Code of Conduct for United States Judges
supports the proposition “that judicial nominees may (and should) properly be asked to explain how they would have
decided well-known Supreme Court cases”).
39 Todd L. Wheeler, I Can’t: Ethical Responses and the Roberts Confirmation Hearings, 19 GEO. J. LEGAL ETHICS
1067, 1076–77 (2006).
40 See United States v. Microsoft Corp., 253 F.3d 34, 111 (D.C. Cir. 2001) (“The Code of Conduct for United States
Judges was adopted by the Judicial Conference of the United States in 1973.”). The Judicial Conference of the United
States is composed of “[t]he Chief Justice of the United States, . . . the chief judge of each judicial circuit, the chief
judge of the Court of International Trade, and a district judge from each judicial circuit.” 28 U.S.C. § 331.
41 Microsoft, 253 F.3d at 111.
42 CODE OF CONDUCT CANON 1 cmt.
43 CODE OF CONDUCT INTRODUCTION.
44 See id. (omitting Justices of the Supreme Court from the list of entities covered by the Code of Conduct); Carolyn A.
Dubay, Public Confidence in the Courts in the Internet Age: The Ethical Landscape for Judges in the Post-Watergate
Era, 40 CAMPBELL L. REV. 531, 550 (2018) (“[T]o this day Justices of the United States Supreme Court are not bound
by the Code and are subject only to federal law and internal policies with respect to substantive ethics rules.”).
However, the Justices nonetheless “consult the Code of Conduct” for guidance as to proper judicial behavior. Anthony
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Conduct is nonetheless often relevant for nominees to the U.S. Supreme Court, many (though not
all) of whom are sitting federal judges.45
Even for court of appeals and district court judges, the Code of Conduct is not a binding set of
laws, but is rather a set of “aspirational rules” by which federal judges should strive to abide.46
“The Code of Conduct contains no enforcement mechanism,”47 and “the Code is not designed or
intended as a basis for civil liability or criminal prosecution.”48 “The only remedies for violation
of the Code are the institution of a disciplinary complaint” against the offending judge “or a
motion to disqualify” the judge from a pending case,49 and neither of those remedies is often
granted.50 Furthermore, not every violation of the Code of Conduct warrants discipline or
disqualification.51 Thus, while the Code of Conduct may limit the types of responses a sitting
federal judge may provide during a confirmation hearing, a nominee who transgresses those
limits might not ultimately face any practical consequences as a result of the transgression.
Moreover, some nominees appearing before the Senate for confirmation are not already judges
subject to the Code of Conduct.
It is uncontroversial that the Code of Conduct at least permits a judicial nominee to appear at a
confirmation hearing for questioning.52 However, the extent to which the Code of Conduct
restricts what the nominee can say during the hearing is less certain.

J. Scirica, Judicial Governance and Judicial Independence, 90 N.Y.U. L. REV. 779, 797 (2015). Accord, e.g., Lynne H.
Rambo, High Court Pretense, Lower Court Candor: Judicial Impartiality After Caperton v. Massey Coal Co., 13
CARDOZO PUB. L. POL’Y & ETHICS J. 441, 457 (2015) (“[A]ccording to Chief Justice Roberts, the members of the
Supreme [Court] treat the Code as a ‘current and uniform source of guidance,’ but are not bound by it.” (quoting 2011
Year-End Report on the Federal Judiciary 5 (Dec. 31, 2011) (Roberts, C.J.),
https://www.supremecourt.gov/publicinfo/year-end/2011year-endreport.pdf.)).
45 See Frank B. Cross & Stefanie Lindquist, Judging the Judges, 58 DUKE L.J. 1383, 1393 (2009) (“[T]he circuit courts
have become the most common source for Supreme Court nominees.”).
46 White v. Nat’l Football League, 585 F.3d 1129, 1140 (8th Cir. 2009). See also In re Charges of Judicial Misconduct,
769 F.3d 762, 766 (D.C. Cir. 2014) (noting that the “main precepts” of the Code of Conduct “are highly general; the
Code is in many potential applications aspirational rather than a set of disciplinary rules” (quoting JUDICIAL
CONFERENCE OF THE UNITED STATES, RULES FOR JUDICIAL-CONDUCT AND JUDICIAL-DISABILITY PROCEEDINGS, RULE 3
cmt. (2008))).
47 Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest. Emps. Int’l Union, 332 F. Supp. 2d 667, 671 (S.D.N.Y.
2004) (quoting United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001)). Accord, e.g., White, 585 F.3d at
1140 (“The Code of Conduct . . . relies upon self-enforcement.”).
48 CODE OF CONDUCT CANON 1 cmt.
49 Metro. Opera Ass’n, 332 F. Supp. 2d at 671. Accord Microsoft, 253 F.3d at 114 (“There are, however, remedies
extrinsic to the Code. One is an internal disciplinary proceeding . . . . Another is disqualification of the offending judge
. . . .”). See also 28 U.S.C. § 351(a) (“Any person alleging that a judge has engaged in conduct prejudicial to the
effective and expeditious administration of the business of the courts . . . may file with the clerk of the court of appeals
for the circuit a written complaint . . .”); id. § 455(a) (“Any justice, judge, or magistrate judge of the United States shall
disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”).
50 See Gordon Bermant & Russell R. Wheeler, Federal Judges and the Judicial Branch: Their Independence and
Accountability, 46 MERCER L. REV. 835, 844 (1995) (“Judicial discipline . . . is . . . rare in the federal courts.”); Jeffrey
W. Stempel, Playing Forty Questions: Responding to Justice Roberts’s Concerns in Caperton and Some Tentative
Answers About Operationalizing Judicial Recusal and Due Process, 39 SW. L. REV. 1, 28 n.117 (2009) (“Judicial
recusal cases based on perceived lack of impartiality . . . are relatively rare at the federal appellate level.”).
51 See, e.g., CODE OF CONDUCT CANON 1 cmt.(“Not every violation of the Code should lead to disciplinary action.”);
United States v. Sierra Pac. Indus., Inc., 862 F.3d 1157, 1175 (9th Cir. 2017) (“[N]ot every violation of the Code of
Conduct creates an appearance of bias requiring recusal . . . .”).
52 CODE OF CONDUCT CANON 4(A)(2) (“A judge may . . . appear at a public hearing before a[] legislative body . . . on
matters concerning the law, the legal system, or the administration of justice.”); id. at 4(A)(1) (“A judge may speak . . .
concerning the law, the legal system, and the administration of justice.”); Lubet, Advice and Consent, supra note 35, at
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Canon 3(A)(6) of the Code of Conduct provides that, with certain exceptions unrelated to judicial
confirmation hearings,53 a “judge should not make public comment on the merits of a matter
pending or impending in any court.”54 This rule is intended to ensure that federal judges “perform
the duties of the office fairly [and] impartially.”55 While it is fairly clear that a sitting federal
judge who has been nominated for elevation to a higher federal court should generally refrain
from directly commenting about the merits of a pending case56—especially a case arising from
the nominee’s own court57—it is less clear whether or to what extent Canon 3(A)(6) discourages
judicial nominees from answering more general questions about their jurisprudential views,
controversial legal issues, and the soundness of judicial precedents that litigants may challenge in
the future. For one thing, neither Canon 3(A)(6) nor the cases and commentary interpreting it
specify how broadly the term “impending in any court” sweeps.58 As at least one court has
recognized, “[t]here is almost no legal or political issue that is unlikely to come before a judge of
an American court” at some point or another.59 Perhaps for that reason, some nominees have
taken the position that “no nominee should express any view on most questions of law” because
“virtually all legal issues may eventually be heard by” a federal court.60
At least one scholar has taken a different position—that a matter is “impending” within the
meaning of Canon 3(A)(6) only if there is “a discrete controversy[] with identifiable facts” and
“specific litigants” that “is poised for litigation, though not actually filed.”61 According to this
definition, “a general issue” about law or jurisprudence, “even a highly contentious one that
might someday reach the Supreme Court, would therefore lack the defining characteristics of an
action or proceeding until it was actually embodied in a definable controversy between known
parties.”62 That scholar therefore maintains that the Code of Conduct permits judicial nominees to
“explain how they would have decided well-known Supreme Court cases” like Roe v. Wade, even
though an abortion case may well come before that nominee in the future.63 That scholar further

881 (“Read in combination, [these two canons] provide a fair endorsement of recent nominees’ practice of making
themselves available to the Senate Judiciary Committee. The confirmation testimony is an appearance before a
legislative body in order to speak about the law.”).
53 CODE OF CONDUCT CANON 3(A)(6) (“The prohibition on public comment on the merits does not extend to public
statements made in the course of the judge’s official duties, to explanations of court procedures, or to scholarly
presentations made for purposes of legal education.”).
54 Id.
55 See CODE OF CONDUCT CANON 3 (entitled “A Judge Should Perform the Duties of the Office Fairly, Impartially, and
Diligently”).
56 A matter is “pending or impending” for the purposes of Canon 3(A)(6) “until the appellate process is complete.” Id.
at 3(A)(6) cmt.
57 See id. (“If the public comment involves a case from the judge’s own court, the judge should take particular care so
that the comment does not denigrate public confidence in the judiciary’s integrity and impartiality . . . .”).
58 See In re Charges of Judicial Misconduct, 769 F.3d 762, 788–89 (D.C. Cir. 2014) (noting that the Code of Conduct
does not define “impending” matters).
59 Buckley v. Ill. Judicial Inquiry Bd., 997 F.2d 224, 229 (7th Cir. 1993). Accord Lubet, Confirmation Ethics, supra
note 19, at 240 (“‘[M]ight come before the Supreme Court’ is an elastic standard that arguably encompasses all human
activity.”).
60 See Lubet, Confirmation Ethics, supra note 19, at 241–42 (describing the confirmation hearings of Justice O’Connor
and Justice Scalia).
61 Lubet, Questioning Ethics, supra note 38, at 62–63.
62 Id. at 62.
63 Id. at 61–62.
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contends that “pure questions of law, even those likely to be considered by the court, are never
‘impending’” for the purposes of Canon 3(A)(6).64
Apart from whether a nominee’s comments would concern an “impending” case, it is also unclear
what kinds of responses would amount to a public comment “on the merits.” “Canon 3[(A)(6)]
does not define ‘on the merits,’”65 and few if any legal opinions provide meaningful guidance
regarding what types of comments during a Senate confirmation hearing would impermissibly
pertain to the “merits” of a pending or impending case for the purposes of the Code of Conduct.66
Thus, while it is clear that the Code of Conduct may constrain judicial nominees from answering
certain questions during the confirmation process, nominees and commentators have not reached
a consensus regarding the scope of those constraints.
The ABA Model Code of Judicial Conduct
Another pertinent set of ethical standards is the ABA Model Code of Judicial Conduct (Model
Code) promulgated by the American Bar Association (ABA).67 The Model Code “is intended
. . . to provide guidance and assist judges in maintaining the highest standards of judicial and
personal conduct, and to provide a basis for regulating their conduct through disciplinary
agencies.”68 Thus, like the Code of Conduct described above, the Model Code “establishes
standards for the ethical conduct of judges and judicial candidates,”69 including nominees for
appointed judgeships.70
Nevertheless, the extent to which the ethical principles embodied in Model Code constrain federal
judicial nominees remains somewhat unclear because, as the name suggests, the Model Code is
merely a “model template[] of legal and judicial ethics.”71 In other words, the Model Code is not
itself “binding on judges unless it has been adopted in” the state in which the judge is stationed or
in which the judicial candidate is seeking office.72 “The ABA does not enforce the [Model] Code
or discipline judges for violating it. Instead, the ABA offers its Code as a model for jurisdictions
to adopt, and those that do are responsible for creating a mechanism to enforce it.”73 Although

64 Lubet, Confirmation Ethics, supra note 19, at 243.
65 In re Charges of Judicial Misconduct, 769 F.3d 762, 793 (D.C. Cir. 2014).
66 See id. (describing existing precedent interpreting the term “on the merits” as “only minimally illuminating”). Cf. In
re Bos.’s Children First, 244 F.3d 164, 168 (1st Cir. 2001) (“[I]t is not at all clear that Judge Gertner was commenting
on the merits of petitioner’s motion [when making comments to the media about the case].”).
67 The American Bar Association is a professional organization of lawyers tasked with “improving the administration
of justice, accrediting law schools, establishing model ethical codes, and more.” About the American Bar Association,
https://www.americanbar.org/about_the_aba.html (last visited Aug. 24, 2018).
68 MODEL CODE PREAMBLE [3].
69 Id.
70 Several of the rules discussed below apply not only to sitting judges, but also to “judicial candidates”—a term the
Model Code defines to include “any person, including a sitting judge, who is seeking selection for or retention in
judicial office by election or appointment.” MODEL CODE TERMINOLOGY. See also MODEL CODE RULE 4.1 cmt. [2]
(“When a person becomes a judicial candidate, this Canon becomes applicable to his or her conduct.”).
71 Jeffrey W. Stempel, Chief William’s Ghost: The Problematic Persistence of the Duty to Sit, 57 BUFF. L. REV. 813,
826 (2009) (emphasis added).
72 Cynthia Gray, Avoiding the Appearance of Impropriety: With Great Power Comes Great Responsibility, 28 U. ARK.
LITTLE ROCK L. REV. 63, 64 n.7 (2005). Accord, e.g., Stempel, supra note 71, at 826 (“[T]he ABA Canons and Model
Code are not binding unless adopted by the relevant state supreme court or legislature.”).
73 Arthur H. Garwin et al., ANNOTATED MODEL CODE OF JUDICIAL CONDUCT 2 (3d ed. 2016) [hereinafter ANNOTATED
MODEL CODE]. Depending on the severity of the violation, disciplinary sanctions for judges who engage in misconduct
may include, inter alia, removal, suspension, public reprimand, or private admonition. See ABA MODEL RULES FOR
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many states have adopted binding standards of judicial conduct that are similar or identical to
those set forth in the Model Code,74 variances between states do exist, with the consequence that
the principles discussed in this section of the report will not necessarily apply equally to every
judicial nominee.75
The Model Code is not binding on federal courts; nevertheless, it provides guidance regarding the
sorts of judicial conduct that are proper and improper,76 and federal judges commonly consult the
Model Code to resolve ethical quandaries.77 Therefore, the following subsections of this report
analyze provisions of the Model Code that could discourage federal judicial nominees from
answering certain questions at their confirmation hearings.
Pledges, Promises, and Commitments
First, the Model Code prohibits judges and judicial candidates from making “pledges, promises,
or commitments” regarding “cases, controversies, or issues that are likely to come before the
court . . . that are inconsistent with the impartial[] performance of the adjudicative duties of
judicial office.”78 As the commentary to the Model Code explains, this prohibition is intended to
promote the independence, integrity, and impartiality of the judiciary by insulating the judiciary
from political influence:79
[A] judge plays a role different from that of a legislator or executive branch official. Rather
than making decisions based upon the expressed views or preferences of the electorate, a
judge makes decisions based upon the law and the facts of every case. Therefore, in
furtherance of this interest, judges and judicial candidates must, to the greatest extent
possible, be free and appear to be free from political influence and political pressure.80
Significantly, the commentary to the Model Code squarely states that the prohibition against
“pledges, promises, or commitments” applies when a judicial candidate is “communicating

JUDICIAL DISCIPLINARY ENFORCEMENT § II.6.2.
74 Peter A. Joy, A Judge’s Duty to Do Justice: Ensuring the Accused’s Right to the Effective Assistance of Counsel, 46
HOFSTRA L. REV. 139, 139 n.2 (2017) (“As of August 22, 2016, thirty-five states have adopted amendments to their
codes of judicial ethics based on the 2007 ABA Code of Judicial Conduct.”). See also In re Sheffield, 465 So. 2d 350,
355 (Ala. 1985) (explaining that, once affirmatively adopted by a state, canons of judicial ethics are no longer “merely
guidelines for proper judicial conduct,” but rather “have the force and effect of law”).
75 Michael P. Seng, What Do We Mean by an Independent Judiciary?, 38 OHIO N.U. L. REV. 133, 142 (2011) (“[T]he
ABA Model Code . . . is not binding and may vary slightly from state to state.”).
76 See Lubet, Confirmation Ethics, supra note 19, at 233 (“Notwithstanding its technical inapplicability to the Supreme
Court, the [Model Code] stands as the broadest and most universally applicable statement available regarding judges’
ethical aspirations for their own profession. It would hardly seem credible for nominees to excuse what would
otherwise be clear ethical lapses on the ground that the rules did not reach them personally.”).
77 See Paul G. Cassell, Treating Crime Victims Fairly: Integrating Victims Into the Federal Rules of Criminal
Procedure, 2007 UTAH L. REV. 861, 906 (“While the Model Code of Judicial Conduct is not binding on federal courts,
its principles have generally been viewed as instructive.”). Cf. In re Charges of Judicial Misconduct, 769 F.3d 762, 789
(D.C. Cir. 2014) (consulting the Model Code for guidance in interpreting the Code of Conduct).
78 MODEL CODE RULE 2.10(B); MODEL CODE RULE 4.1(A)(13). See also MODEL CODE RULE 4.3 cmt. [1] (“[W]hen
communicating directly with an appointing or confirming authority, a candidate for appointive judicial office must not
make any pledges, promises, or commitments that are inconsistent with the impartial performance of the adjudicative
duties of the office.”).
79 See also MODEL CODE CANON 2 (“A judge shall perform the duties of judicial office impartially . . .”); MODEL CODE
CANON 4 (“A Judge Or Candidate For Judicial Office Shall Not Engage In Political Or Campaign Activity That Is
Inconsistent With The Independence, Integrity, Or Impartiality Of The Judiciary.”).
80 MODEL CODE RULE 4.1 cmt. [1].
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directly with an appointing or confirming authority”81—a term defined to include “the United
States Senate when sitting to confirm or reject presidential nominations of federal judges.”82
As courts interpreting analogous state ethical rules have explained, “[w]hether a statement is a
pledge, promise or commitment is objectively [discernible]. It requires affirmative assurance of a
particular action. It is a predetermination of the resolution of a case or issue.”83 Thus, “in
determining whether a ‘pledge, promise, or commitment’ has been made, the question is whether
‘a reasonable person would believe that the candidate for judicial office has specifically
undertaken to reach a particular result.’”84 The clause thereby “prohibits a candidate from
promising that he will not apply or uphold the law.”85
There do not appear to be any judicial cases or advisory opinions clarifying what types of
statements qualify as “pledges, promises, and commitments” in the specific context of a
confirmation hearing for an appointed federal judgeship. However, because the Model Code
purports to apply equally to candidates for appointed and elected judgeships alike,86 cases
analyzing the “pledges, promises, and commitments” clause in the context of campaigns for
elected judgeships are illustrative.
In particular, cases discussing whether a nominee for an elected judgeship may answer surveys
from advocacy groups seeking to discern the nominee’s views on controversial legal issues can
illuminate whether the “pledges, promises, and commitments” rule might likewise constrain a
federal judicial nominee from answering similar questions during a Senate confirmation hearing.
Advocacy groups commonly submit “questionnaires to candidates for election or retention” for
state judgeships asking candidates to state their views on disputed legal questions, such as
“whether they agree with Roe v. Wade, which held many forms of abortion legislation
unconstitutional.”87 As the commentary to the Model Code explicitly states, “[d]epending upon
the wording and format of such questionnaires, candidates’ responses might be viewed as
pledges, promises, or commitments to perform the adjudicative duties of office other than in an
impartial way.”88 Nevertheless, courts generally agree that state ethical canons derived from the
Model Code do not categorically prohibit candidates from answering such questions in surveys—

81 MODEL CODE RULE 4.3 cmt. [1].
82 ANNOTATED MODEL CODE, supra note 73, at 578. That said, the Code of Conduct that governs federal judges does
not contain a provision that is precisely analogous to the Model Code’s “pledges, promises, or commitments” rule
governing state judges and judicial candidates. See Lubet, Confirmation Ethics, supra note 19, at 261 (“[T]he United
States Judicial Conference deleted the whole of [the pledges, promises, and commitments clause] when it adopted the
Code of Judicial Conduct.”).
83 Carey v. Wolnitzek, Civil Action No. 3:06-36-KKC, 2012 WL 4597236, at *4 (E.D. Ky. Sept. 29, 2012) (quoting
Duwe v. Alexander, 490 F. Supp. 2d 968, 975–76 (W.D. Wis. 2007)).
84 Id. at *5.
85 Id.
86 See MODEL CODE TERMINOLOGY (stating that, for the purposes of the Model Code, the term “judicial candidate”
includes “any person, including a sitting judge, who is seeking selection for or retention in judicial office by election or
appointment”) (emphasis added).
87 See Bauer v. Shepard, 620 F.3d 704, 706 (7th Cir. 2010) (internal citations omitted). Accord ANNOTATED MODEL
CODE, supra note 73, at 546 (“[T]here has been an increased use of questionnaires, which special interest groups send
to judicial candidates to ask them about their opinions on disputed political or legal issues such as whether Roe v. Wade
was wrongly decided.”). See also Penn. Family Inst., Inc. v. Celluci, 521 F. Supp. 2d 351, 365 n.8 (E.D. Pa. 2007)
(quoting judicial questionnaire asking candidates whether they “believe[d] that Roe v. Wade . . . was correctly or
incorrectly decided” (citation omitted)); N.D. Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021, 1028 (D.N.D.
2005) (excerpts from survey asking judicial candidates to state their views on legal issues relating to abortion, gay
marriage, and school prayer).
88 MODEL CODE RULE 4.1 cmt. [15].
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so long as those candidates do not pledge to issue specific rulings irrespective of the law or the
facts.89 To clarify that such responses represent the candidate’s personal views rather than a
commitment to rule in specific ways, the Model Code admonishes judicial candidates to
“acknowledge the overarching judicial obligation to apply and uphold the law, without regard to
[the judge’s] personal views,” when responding to such questionnaires.90
To that end, state courts and disciplinary bodies most commonly impose discipline under the
“pledges, promises, and commitments” clause when a judicial candidate makes campaign
promises to favor or disfavor certain classes of litigants in their rulings—such as pledges to rule
against criminal defendants and in favor of children, crime victims, and police officers.91
The rule that a judicial candidate should not attempt to garner a larger share of the popular vote
by promising to rule mechanically in particular ways would appear to apply equally to a judicial
nominee seeking to induce Senators to vote in favor of the nominee’s confirmation. The drafting
history of the Model Code states the following:
Although candidates for appointive judicial office are by definition not submitting
themselves to the voting public at large, they are trying to influence a much smaller
“electorate” . . . . It is just as improper in these small-scale “campaigns” to make pledges
and promises that are inconsistent with the impartial performance of judicial duties as it is
in campaign for elected office, with town meetings and television advertisements.92

89 See, e.g., Kan. Judicial Review v. Stout, 196 P.3d 1162, 1176 (Kan. 2008) (“A candidate’s decision to respond to a
questionnaire asking, ‘What is your stance on abortion?’ is qualitatively different under the code from a candidate’s
decision to respond to a question ‘Do you vow to overturn Roe v. Wade?’ While an answer to the first of these
questions would likely be a permissible announcement of a personal view on a disputed legal issue, an affirmative
response to the second question would impermissibly bind a candidate to a particular legal action.”); Bauer, 620 F.3d at
715–16 (“Under Indiana’s language, judges and candidates can tell the electorate not only their general stance (‘tough
on crime’ or ‘tough on drug companies’) but also their legal conclusions (‘I would have joined Justice White’s dissent
in Roe’ or ‘the death penalty should be treated as cruel and unusual punishment’) . . . . A judge who promises to ignore
the facts and the law to pursue his (or his constituents’) ideas about wise policy is problematic in a way that a judge
who has announced considered views on legal subjects is not. The commits clauses condemn the former and allow the
latter.”); Wolfson v. Brammer, 616 F.3d 1045, 1063–64 (9th Cir. 2010) (“The pledges and promises clause prohibits
committing oneself or making promises. The pledges and promises clause does not unambiguously prohibit the
expression of one’s views on issues that may come before the court . . . [A] candidate may express views on any
disputed issue, subject to and consistent with the pledges and promises clause.” (internal citations and quotation marks
omitted)).
90 MODEL CODE RULE 4.1 cmt. [13].
91 See, e.g., In re Kinsey, 842 So. 2d 77, 88 (Fla. 2003) (“Each of the charges addressed above involved implicit
pledges that if elected to office, Judge Kinsey would help law enforcement. Through these statements, Judge Kinsey
fostered the distinct impression that she harbored a prosecutor’s bias and police officers could expect more favorable
treatment from her . . . . She also made pledges to victims of crime . . . giving the appearance that she was already
committed to according them more favorable treatment than other parties appearing before her.”); In re Watson, 794
N.E.2d 1, 4–5 (N.Y. 2003) (“[P]etitioner’s comments in this case, when viewed in light of his comprehensive campaign
theme, violate the pledges or promises prohibition . . . . [P]etitioner’s campaign effectively promised that, if elected, he
would aid law enforcement rather than apply the law neutrally and impartially in criminal cases.”); Judicial Ethics
Opinion 2007-1, 162 P.3d 246, 247 (Okla. Judicial Ethics Advisory Panel 2007) (“The campaign statements . . . are
committing the judicial candidate, if elected, to favor certain parties in the litigation, i.e., children, victims, which the
Code of Judicial Conduct prohibits.”). Cf. In re Singletary, 967 A.2d 1094, 1098 (Pa. Ct. Judicial Discipline 2009)
(disciplining judicial candidate who “promis[ed] that anyone who gave him money” to support his judicial election
campaign “would get favorable consideration from him if he was elected judge”). See also ANNOTATED MODEL CODE,
supra note 73, at 551–52 (explaining that “[s]tatements that convey the message that a judge or judicial candidate is
predisposed to rule in a certain manner in criminal cases that may come before him or her as a judge violate Rules
4.1(A)(12) and (13)” of the Model Code, but “[a] judicial candidate’s statement that he or she will be ‘tough on crime’
generally does not violate Rule 4.1”).
92 See ABA JOINT COMMISSION TO EVALUATE THE MODEL CODE OF JUDICIAL CONDUCT REPORT, 162 (Nov. 2006).
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The commentary to the Model Code emphasizes that “[p]ledges, promises, or commitments must
be contrasted with statements or announcements of personal views on legal, political, or other
issues, which are not prohibited” so long as the judicial candidate also “acknowledge[s] the
overarching judicial obligation to apply and uphold the law, without regard to his or her personal
views.”93 Thus, according to the drafting history of the Model Code, a nominee may “announce[]
his or her personal views—even strongly held personal views—on a matter that is likely to come
before the court” without violating the “pledges, promises, or commitments” rule as long as that
announcement does not “demonstrate[] a closed mind on the subject” or “include[] a pledge or a
promise to rule in a particular way if the matter does come before the court.”94 Some courts
interpreting state ethical rules derived from the Model Code have therefore concluded that
most statements identifying a point of view will not implicate the “pledges or promises”
prohibition. The rule precludes only those statements of intention that single out a party or
class of litigants for special treatment, be it favorable or unfavorable, or convey that the
candidate will behave in a manner inconsistent with the faithful and impartial performance
of judicial duties . . . .95
Thus, by analogy, federal judicial nominees may be able to answer general questions about their
jurisprudential philosophies during their Senate confirmation hearings without running afoul of
the “pledges, promises, and commitments” clause, but they should not commit to reaching
particular results in specific cases if they are confirmed.96
A comment by a judicial nominee could conceivably qualify as an impermissible “public
statement” under the Model Code, even if it does not qualify as an impermissible “pledge,
promise, or commitment.”97 Moreover, as discussed in greater detail below,98 even if a public
announcement regarding the candidate’s jurisprudential views does not itself violate the “pledges,
promises, and commitments” clause, successful candidates may nonetheless potentially be
disqualified from hearing certain cases after taking the bench if their prior statements would lead
a reasonable person to question their impartiality.99

93 MODEL CODE RULE 4.1 cmt. [13]. Accord Kinsey, 842 So. 2d at 87 (“[A] candidate may state his or her personal
views, even on disputed issues. However, to ensure that voters understand a judge’s duty to uphold the constitution and
laws of the state where the law differs from his or her personal belief, the commentary encourages candidates to stress
that as judges, they will uphold the law.”).
94 ABA JOINT COMMISSION REPORT, supra note 92, at 148–49.
95 In re Watson, 794 N.E.2d 1, 7 (N.Y. 2003).
96 See Lubet, Questioning Ethics, supra note 38, at 61 (arguing “that judicial nominees may (and should) properly be
asked to explain how they would have decided well-known Supreme Court cases”); Lubet, Advice and Consent, supra
note 35, at 882 (arguing that “a nominee’s answers before the Senate Judiciary Committee[] will violate” the applicable
codes of judicial conduct “only where they evince a settled intention to decide certain cases in a certain manner,” such
as “promising to reach a predetermined outcome” in a future case “irrespective of the arguments of the parties or the
discrete facts of the presented case”).
97 See infra “Public Statements.”
98 See infra “Disqualification.”
99 See N.D. Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021, 1040, 1045 (D.N.D. 2005) (concluding that, even
though “judicial candidates must be allowed to impart whatever information they choose about their views on political,
legal, and social issues, and their personal philosophy—without restriction,” a candidate who exercises that right may
nonetheless “create a serious ethical dilemma for himself or herself that would require recusal at a later date”); Penn.
Family Inst., Inc. v. Celluci, 521 F. Supp. 2d 351, 387 (E.D. Pa. 2007) (explaining that, although “judicial candidates
. . . may answer questionnaires . . . without fear of discipline” under “the pledges and promises and commits clauses,”
their answers could nonetheless potentially “force them to recuse themselves from future cases”). But see Duwe v.
Alexander, 490 F. Supp. 2d 968, 977 (W.D. Wis. 2007) (concluding that state recusal rule requiring judges to recuse
themselves for their past public statements was “unconstitutionally vague and overbroad”).
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Public Statements
With certain exceptions not relevant here,100 the Model Code also prohibits judges and judicial
candidates alike from making “any public statement that might reasonably be expected to affect
the outcome or impair the fairness of a matter pending[] or impending[] in any court.”101 This
prohibition serves to avoid the public perception that a “judge has either pre-judged [a] matter or
that the judge has such a strong bias that he cannot render or provide an arena where the jury can
render an impartial decision based solely on the evidence.”102 Because this “public statement”
rule applies regardless of the forum in which the judge or candidate makes the statement,103 the
Model Code thereby discourages federal judicial nominees from making certain types of public
statements during their confirmation hearings.104
The Model Code defines an “impending” matter to include any “matter that is imminent or
expected to occur in the near future.”105 Thus, by its plain terms, the “public statement”
prohibition appears to apply to a broad array of legal disputes, including those that have not yet
ripened into actual lawsuits.106 Nonetheless, the rule’s scope is not unlimited; the annotations to
the Model Code107 clarify that the term “impending” “does not include ‘every possible social or
community issue that could come before the court.’”108 Instead, “impending matters are those that
if they continue on their regular course will end up in a court.”109
The annotations to the Model Code also state that, “[o]nce a case is fully resolved and no longer
pending, a judge is free to engage in any extrajudicial comments” about the case.110 One might

100 See MODEL CODE RULE 2.10(D) (“Notwithstanding the restrictions in paragraph (A), a judge may make public
statements in the course of official duties, may explain court procedures, and may comment on any proceeding in
which the judge is a litigant in a personal capacity.”); MODEL CODE RULE 2.10(E) (“Subject to the requirements of
paragraph (A), a judge may respond directly or through a third party to allegations in the media or elsewhere
concerning the judge’s conduct in a matter.”); ANNOTATED MODEL CODE, supra note 73, at 236–39 (explaining these
exceptions in greater detail).
101 MODEL CODE RULE 2.10(A). See also MODEL CODE RULE 4.1(A)(12) (referring to “statement[s]” generally, rather
than “public statement[s]” specifically). A matter remains “pending” for the purposes of the Model Code “through any
appellate process until final disposition.” MODEL CODE TERMINOLOGY. Note that the public statement rule applies to
matters pending or impending in any court, not just the specific court to which the judicial candidate seeks to be elected
or appointed. See In re Judicial Qualifications Comm’n Formal Advisory Op. No. 241, 799 S.E.2d 781, 785 (Ga. 2017)
(“The phrase ‘in any court’ indicates that a judge is not only prohibited from commenting on cases pending in his or
her own court, but is also precluded from commenting on matters pending in other courts.”); In re White, 651 N.W.2d
551, 564 (Neb. 2002) (concluding that state canon’s “limitations on public comments apply where a trial judge
comments on a matter that is before another trial judge or has been taken to an appellate court”).
102 ANNOTATED MODEL CODE, supra note 73, at 235.
103 See id. at 231 (“If a judge’s comments fall within the prohibitions of Rule 2.10(A), virtually any public expression
in any forum is subject to discipline.”).
104 See White, 651 N.W.2d at 564 (concluding that statements or comments are “public” for the purposes of the judicial
ethics rules if they are made “in a public forum” and are “part of the public record”).
105 MODEL CODE TERMINOLOGY.
106 See Lubet, Confirmation Ethics, supra note 19, at 240 (“‘[M]ight come before the Supreme Court’ is an elastic
standard that arguably encompasses all human activity.”).
107 The annotations to the Model Code are published by the ABA and are intended to “present[] an authoritative and
practical analysis of the judicial ethics rules and the cases, ethics opinions, and other legal authorities essential to
understanding them.” ANNOTATED MODEL CODE, supra note 73, at ix.
108 Id. at 227. (quoting Marla N. Greenstein, Commenting on Pending or Impending Matters, 46 NO. 2 JUDGES’ J. 41
(2007)).
109 Id.
110 Id. at 230 (analyzing MODEL CODE RULE 2.10). Accord id. at 535 (analyzing MODEL CODE RULE 4.1) (“A judge is
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reasonably interpret this annotation to grant federal judicial nominees some leeway to comment
about cases previously decided by the Supreme Court or other courts.111 Nevertheless, statements
about a prior case implicating issues that are likely to recur in a future case could conceivably still
fall within the Model Code’s prohibitions.112
Neither the case law nor the annotations to the Model Code provide significant guidance
regarding what types of public statements made during the federal confirmation process may
impermissibly “affect the outcome or impair the fairness” of a pending or impending matter
within the meaning of the rule.113 However, the annotations to the Model Code do at least suggest
that “[j]udges may . . . express their disagreement and criticism about the present state of the law
as long as they do not appear to substitute their concept of what the law ought to be for what the
law actually is.”114
Nonpublic Statements
Public hearings are not the only occasion where a federal judicial nominee could conceivably
make statements that implicate ethical norms or rules. In addition to publicly appearing before the
Senate for questioning, it is common for federal judicial nominees to meet privately with
Members for courtesy visits in advance of their confirmation hearings.115 Some commentators
have expressed concern that judicial candidates may make “commitments on particular issues or
cases” during these meetings.116 As noted above, the Model Code prohibits judicial nominees
from pledging to rule in a certain way, whether they do so publicly in their confirmation hearings
or privately during courtesy visits with Members.117 Additionally, however, the Model Code
prohibits nominees who are sitting federal or state judges from “mak[ing] any nonpublic
statement that might substantially interfere with a fair trial or hearing.”118 There are no cases
applying this “nonpublic statement” rule in the federal judicial confirmation context, and cases
interpreting the rule tend to arise in contexts that are not factually analogous to the judicial
confirmation process.119 Moreover, the commentary to the Model Code provides little guidance

not prohibited from speaking publicly on matters that have been concluded and resolved.”).
111 Cf. Lubet, Questioning Ethics, supra note 38, at 61–62 (arguing that the applicable canons of judicial conduct permit
judicial nominees to “explain how they would have decided well-known Supreme Court cases”).
112 See ANNOTATED MODEL CODE, supra note 73, at 227 (“[I]mpending matters are those that if they continue on their
regular course will end up in a court.” (quoting Greenstein, supra note 108)).
113 See MODEL CODE RULE 2.10(A); see also ANNOTATED MODEL CODE, supra note 73, at 535 (citing cases in which
candidates for elected state judgeships criticized criminal sentences handed down by their opponents in cases that were
still pending).
114 ANNOTATED MODEL CODE, supra note 73, at 367.
115 See Ronald D. Rotunda, Innovations Disguised as Traditions: A Historical Review of the Supreme Court
Nominations Process, 1995 U. ILL. L. REV. 123, 129–30 (“[S]ince the 1970s” it has “been the norm for Supreme Court
nominees to pay courtesy calls on selected Senators, moving from office to office . . . . [T]he meetings are held in
private . . .”). See generally CRS Report R44236, Supreme Court Appointment Process: Consideration by the Senate
Judiciary Committee, by Barry J. McMillion.
116 Mary L. Clark, Advice and Consent vs. Silence and Dissent? The Contrasting Roles of the Legislature in U.S. and
U.K. Judicial Appointments, 71 LA. L. REV. 451, 468 (2011).
117 See supra “Pledges, Promises, and Commitments.”
118 MODEL CODE RULE 2.10(A). Rule 4.1(A)(12) also prohibits judges and judicial candidates alike from “mak[ing] any
statement that would reasonably be expected to affect the outcome or impair the fairness of a matter pending[] or
impending[] in any court,” without drawing any explicit distinction between public and nonpublic statements. See
MODEL CODE RULE 4.1(A)(12).
119 See In re Naranjo, 303 P.3d 849, 851, 854 (N.M. 2013) (state magistrate judge disciplined for vouching for his
stepson’s character during ex parte phone call with state district judge presiding over stepson’s child support case);
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regarding how the prohibition on nonpublic statements applies in the judicial confirmation
process.120 Thus, it is unclear whether and to what extent the Model Code constrains nominees’
conduct during private meetings with Members beyond prohibiting them from pledging to rule in
particular ways if confirmed.
Disqualification
Beyond the need to comply with specific ethical norms, another reason that some nominees may
avoid answering certain questions during their confirmation hearings is the need to refrain from
making public statements that would mandate their disqualification121 from future cases.122
Several federal statutes,123 as well as several canons of judicial conduct,124 require federal judges
to recuse themselves from adjudicating particular cases under specified circumstances.125 Of
particular relevance here, with limited exceptions,126 28 U.S.C. § 455(a) affirmatively requires
“any justice, judge, or magistrate judge of the United States” to “disqualify himself in any
proceeding in which his impartiality might reasonably be questioned.”127 As explained below,
courts have concluded that a judge’s extrajudicial statements or comments can sometimes
mandate that judge’s disqualification from particular cases pursuant to Section 455(a).128

ANNOTATED MODEL CODE, supra note 73, at 232–33 (“For instance, a judge was disciplined for commenting on an
issue pending in a case during a telephone call with an attorney in a case . . . and for discussing the merits of a trial with
other witnesses while subpoenaed as a potential witness in a case.” (internal citations omitted)).
120 ANNOTATED MODEL CODE, supra note 73, at 232–33 (not defining “substantially interfere with a fair trial or
hearing”)
121 “Traditionally, ‘recusal’ has referred to a judge’s voluntary, discretionary decision to step down in a case, while
‘disqualification’ refers to a motion for the statutorily or constitutionally mandated removal of a judge from a case.” Id.
at 244. However, “in modern practice the terms ‘disqualification’ and ‘recusal’ are frequently viewed as synonymous
and are often used interchangeably.” Id. at 245 (quoting Richard E. Flamm, JUDICIAL DISQUALIFICATION: RECUSAL AND
DISQUALIFICATION OF JUDGES § 1.1 at 4–5 (1986)). This report therefore uses the two terms interchangeably as well.
122 See Wheeler, supra note 39, at 1071 (“Candidates must be aware that any statement made in the course of their
confirmation that puts their impartiality reasonably in question may require their disqualification.”); Lubet,
Confirmation Ethics, supra note 19, at 253 (“Justice O’Connor argued during her confirmation hearing that a nominee
. . . should refrain from making statements that might lead to disqualification in a future case.”).
123 See 28 U.S.C. § 144 (“Whenever a party to any proceeding in a district court makes and files a timely and sufficient
affidavit that the judge before whom the matter is pending has a personal bias or prejudice against either him or in
favor of any adverse party, such judge shall proceed no further therein, but another judge shall be assigned to hear such
proceeding.”); id. § 455(a)–(b) (specifying circumstances in which a “justice, judge, or magistrate judge of the United
States shall disqualify himself” from a proceeding); id. § 47 (“No judge shall hear or determine an appeal from the
decision of a case or issue tried by him.”).
124 See CODE OF CONDUCT CANON 3(C)(1) (“A judge shall disqualify himself or herself in a proceeding in which the
judge’s impartiality might reasonably be questioned . . . .”); MODEL CODE RULE 2.11(A) (same).
125 See generally Brown, supra note 24, at 2.
Under certain circumstances, constitutional due process principles may likewise mandate a judge’s disqualification
from particular cases. See, e.g., Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 872 (2009).
126 See 28 U.S.C. § 455(e) (“Where the ground for disqualification arises only under subsection (a), waiver may be
accepted provided it is preceded by a full disclosure on the record of the basis for disqualification.”); Ignacio v. Judges
of the U.S. Court of Appeals for the Ninth Circuit, 453 F.3d 1160, 1163 (9th Cir. 2006) (describing the “rule of
necessity,” pursuant to which “a judge is not disqualified to try a case” under Section 455 “if ‘the case cannot be heard
otherwise’” (quoting United States v. Will, 449 U.S. 200, 213 (1980))).
127 28 U.S.C. § 455(a).
128 See, e.g., In re Bos.’s Children First, 244 F.3d 164, 164–71 (1st Cir. 2001) (holding that district court judge should
have recused herself from a case after making public comments to the media about the case).
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A judge’s “need to avoid frequent disqualification”—and, by extension, a judicial nominee’s need
to avoid making public statements that would warrant recusal in future cases—is arguably
particularly pressing “in the case of Supreme Court justices.”129 Because “the Supreme Court is
the ultimate tribunal on matters that are frequently of urgent public importance,” some have
argued that “[t]he nation is entitled, where possible, to decisions that are made by a full Court.”130
Unlike in the lower courts, where a district or circuit judge from the same court may step in to
take the place of a disqualified judge,131 neither retired Justices of the Supreme Court nor lower
court judges may hear a case in a recused Justice’s stead.132 Thus, the disqualification of a
Supreme Court Justice from a particular case increases the likelihood that the Court will be
evenly divided and thereby unable to create binding precedent for future cases.133
As the federal appeals courts have explained, “[t]he standard for disqualification under § 455(a) is
an objective one. The question is whether a reasonable and informed observer would question the
judge’s impartiality” as a result of the judge’s conduct.134 Thus, “[t]he judge does not have to be
subjectively biased or prejudiced” to mandate disqualification under Section 455(a), “so long as
he appears to be so.”135 “[D]isqualification from the judge’s hearing any further proceedings in
the case” is “mandatory for conduct that calls a judge’s impartiality into question.”136
Significantly, Section 455(a) “is not intended to give litigants a veto power over sitting judges, or
a vehicle for obtaining a judge of their choice.”137 Unjustified recusals “contravene public policy

129 Lubet, Confirmation Ethics, supra note 19, at 254.
130 Id.
131 See Cheney v. U.S. Dist. Ct. for D.C., 541 U.S. 913, 915 (2004) (memorandum of Scalia, J.) (“Let me respond, at
the outset, to Sierra Club’s suggestion that I should ‘resolve any doubts in favor of recusal.’ That might be sound
advice if I were sitting on a Court of Appeals. There, my place would be taken by another judge, and the case would
proceed normally.”) (internal citations omitted); Microsoft Corp. v. United States, 530 U.S. 1301, 1303 (2000)
(statement of Rehnquist, J.) (“It is important to note the negative impact that the unnecessary disqualification of even
one Justice may have upon our Court. Here—unlike the situation in a District Court or a Court of Appeals—there is no
way to replace a recused justice.”).
132 See Lisa T. McElroy & Michael C. Dorf, Coming Off the Bench: Legal and Policy Implications of Proposals to
Allow Retired Justices to Sit by Designation on the Supreme Court, 61 DUKE L.J. 81, 82–84 (2011) (explaining how,
under existing law, a retired Supreme Court Justice may not take an active Justice’s place on a case in order to avoid a
4-4 split decision); Edward A. Hartnett, Ties in the Supreme Court of the United States, 44 WM. & MARY L. REV. 643,
646–47 (2002) (“While circuit and district judges may be temporarily assigned to other circuits or districts, there is no
authority for their temporary assignment to the Supreme Court. Indeed, the statute authorizing the assignment of retired
district and circuit judges to judicial duties specifically excludes assignments to the Supreme Court.”) (citing 28 U.S.C.
§ 294(d)).
133 See Cheney, 541 U.S. at 915 (memorandum of Scalia, J.) (explaining that, when a Supreme Court Justice recuses
himself or herself, “the Court proceeds with eight Justices, raising the possibility that, by reason of a tie vote, it will
find itself unable to resolve the significant legal issue presented by the case”); Microsoft, 530 U.S. at 1303 (statement
of Rehnquist, J.) (noting that, following the disqualification of a single Justice, “the even number of those remaining
creates a risk of affirmance of a lower court decision by an equally divided court.”).
134 United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C. Cir. 2001). Accord, e.g., White v. Nat’l Football League,
585 F.3d 1129, 1138 (8th Cir. 2009) (“In analyzing whether recusal is required, we ask ‘whether the judge’s
impartiality might reasonably be questioned by the average person on the street who knows all the relevant facts of a
case.’” (quoting Moran v. Clarke, 296 F.3d 638, 648 (8th Cir. 2002))); United States v. Sierra Pac. Indus., Inc., 862
F.3d 1157, 1174 (9th Cir. 2017) (“The test for recusal . . . is ‘an objective test based on public perception.’” (quoting
United States v. Holland, 519 F.3d 909, 913 (9th Cir. 2008))).
135 United States v. Ciavarella, 716 F.3d 705, 718 (3d Cir. 2013) (quoting Liteky v. United States, 510 U.S. 540, 553
n.2 (1994)). Accord, e.g., White, 585 F.3d at 1138 (“Section 455(a) establishes an objective standard, and the existence
of actual bias is irrelevant.”).
136 Microsoft, 253 F.3d at 116.
137 White, 585 F.3d at 1138 (quoting United States v. Cooley, 1 F.3d 985, 993 (10th Cir. 1993)). Accord In re Boston’s
Children First, 244 F.3d 164, 167 (1st Cir. 2001) (expressing “the fear that recusal on demand would provide litigants
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by unduly delaying proceedings, increasing the workload of other judges, and fostering
impermissible judge-shopping.”138 As a consequence, to avoid undesirable and unwarranted
recusals, courts “assume the impartiality of a sitting judge and ‘the party seeking disqualification
bears the substantial burden of proving otherwise.’”139
Section 455 is generally “intended to be self-enforcing, meaning that the recusal issue is supposed
to be raised first by the judge and not the parties.”140 Nevertheless, Section 455’s “standards are
not completely self-policing,”141 as “a party [to the litigation] certainly may file a motion” to
disqualify a judge if appropriate,142 and “a federal trial judge’s refusal to disqualify himself” is
subject to appellate review.143 However, a federal appellate court will generally overturn a district
court judge’s decision not to recuse himself only if that “decision was not reasonable and [wa]s
unsupported by the record.”144
Section 455(a) is similar to the Code of Conduct discussed above145 to the extent that both strive
to promote impartiality in the federal judiciary.146 Nonetheless, courts have recognized “that the
Code of Judicial Conduct does not overlap perfectly with § 455(a): it is possible to violate the
Code without creating an appearance of partiality; likewise, it is possible for a judge to comply
with the Code yet still be required to recuse herself.”147 Thus, when assessing whether a federal
judge’s public statement or comment mandates recusal from a case, courts have considered—but
have not treated as dispositive—whether the statement in question violates Canon 3(A)(6)148 of
the Code of Conduct.149

with a veto against unwanted judges”) (internal citations and quotation marks omitted).
138 ANNOTATED MODEL CODE, supra note 73, at 246.
139 See White, 585 F.3d at 1138 (quoting United States v. Denton, 434 F.3d 1104, 1111 (8th Cir. 2006)).
140 Amanda Frost, Keeping Up Appearances: A Process-Oriented Approach to Judicial Recusal, 53 U. KAN. L. REV.
531, 582 (2005). Accord, e.g., United States v. Conforte, 624 F.2d 869, 880 (9th Cir. 1980) (Kennedy, J.) (“The statute
imposes a self-enforcing duty on the judge . . . .”).
141 John O. McGinnis & Mark L. Movsesian, The World Trade Constitution, 114 HARV. L. REV. 511, 603 (2000).
142 Johnathan A. Mondel, Note, Mentally Awake, Morally Straight, and Unfit to Sit? Judicial Ethics, the First
Amendment, and the Boy Scouts of America, 68 STAN. L. REV. 865, 887 n.111 (2016). Accord, e.g., Conforte, 624 F.2d
at 880 (“The statute imposes a self-enforcing duty on the judge, but its provisions may be asserted also by a party to the
action.”).
143 McGinnis & Movsesian, supra note 141, at 603.
144 United States v. Casey, 825 F.3d 1, 28 (1st Cir. 2016).
145 See supra “The Code of Conduct for United States Judges.”
146 Compare 28 U.S.C. § 455(a) (“Any justice, judge, or magistrate judge of the United States shall disqualify himself
in any proceeding in which his impartiality might reasonably be questioned.”), with CODE OF CONDUCT CANON 3(C)(1)
(“A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be
questioned . . . .”).
147 In re Bos.’s Children First, 244 F.3d 164, 168 (1st Cir. 2001). Accord, e.g., United States v. Sierra Pac. Indus., Inc.,
862 F.3d 1157, 1175 (9th Cir. 2017) (“[N]ot every violation of the Code of Conduct creates an appearance of bias
requiring recusal under § 455(a).”); White v. Nat’l Football League, 585 F.3d 1129, 1140 (8th Cir. 2009) (agreeing that
the Code of Conduct and Section 455(a) are not coterminous); United States v. Microsoft Corp., 253 F.3d 34, 114 (D.C.
Cir. 2001) (“Although this Court has condemned public judicial comments on pending cases, we have not gone so far
as to hold that every violation of Canon 3A(6) or every impropriety under the Code of Conduct inevitably destroys the
appearance of impartiality and thus violates § 455(a).”).
148 See supra “The Code of Conduct for United States Judges.”
149 See Bos.’s Children First, 244 F.3d at 168 (“Although the ‘goal sought to be served by [Canon 3(A)(6)] informs our
analysis,’ we do not decide the case solely on that basis.” (quoting United States v. Cooley, 1 F.3d 985, 995 n.8 (10th
Cir. 1993))); Microsoft, 253 F.3d at 114 (“Violations of the Code of Conduct may give rise to a violation of § 455(a) if
doubt is cast on the integrity of the judicial process.”); Metro. Opera Ass’n, Inc. v. Local 100, Hotel Emps. & Rest.
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As some courts have observed, however, there is “little guidance on when public comments”
made outside the context of a hearing or bench ruling150 “create an appearance of partiality for
which § 455(a) recusal is the appropriate remedy.”151 In particular, there are few cases analyzing
whether a judge’s statement in the confirmation context can mandate that judge’s disqualification
from particular cases once that judge reaches the bench. Instead, the most common scenario in
which a judge’s public comments disqualify that judge from adjudicating a case is when the judge
makes statements to the media about a case over which that judge is presently presiding.152 Such
situations are only minimally illuminating, however, as a judge who volunteers statements to the
media about a case over which that judge is actively presiding would seem to pose a materially
greater risk to judicial integrity than a nominee who answers questions in the abstract regarding
the nominee’s jurisprudential views during a Senate confirmation hearing.
In re African-American Slave Descendants Litigation is one of the few Section 455(a) cases that
directly discuss when, if ever, statements made during the judicial confirmation process should
lead a judge to self-disqualify.153 The plaintiffs in African-American Slave Descendants moved to
recuse the district judge assigned to the case, claiming that certain “statements [the judge] made
to the United States Senate Judiciary Committee during [his] judicial confirmation” reflected
“bias against either the [p]laintiffs or their lawsuit.”154 Critically, however, the challenged
statements “merely discussed [the nominee’s] general legal views” on issues like “judicial
restraint and the constitutional doctrine of separation of powers.”155 The district court judge
therefore reasoned that his prior comments were “not so case-specific that a reasonable person
would believe that they would predetermine his decision in [the plaintiffs’ case] some two
decades later.”156 The court thus determined that the plaintiffs had failed to “proffer[] any valid
reasons for recusal based on [the judge’s] statements made in [a] questionnaire submitted to the
United States Senate during his judicial confirmation.”157

Emps. Int’l Union, 332 F. Supp. 2d 667, 671 (S.D.N.Y. 2004) (“[E]ven the finding of a violation of Canon 3(A)(6)
would not require a conclusion that disqualification is appropriate.”).
150 “Courts are loath to require recusal based on statements made in a judicial context (e.g., in a status hearing or a
decision rendered from the bench), even when such statements might suggest, to some extent, pre-determination of the
merits” of a case. Bos.’s Children First, 244 F.3d at 169 n.9. Statements during Senate confirmation hearings, however,
are not “made in a judicial context.”
151 Id. at 168–69.
152 See, e.g., Microsoft, 253 F.3d at 107–19 (concluding that district judge violated Section 455(a) “by talking about the
case with reporters”); Bos.’s Children First, 244 F.3d at 164–71 (holding that district judge should have recused herself
from a case after making public comments to the media about the case). But see White, 585 F.3d at 1138–41
(concluding although district judge “would have been well advised” not to make “remarks to the press,” judge’s
“statements to the press” nonetheless did not warrant his recusal from case).
153 307 F. Supp. 2d 977 (N.D. Ill. 2004).
154 Id. at 981.
155 See id. at 985–86. For instance, the judge stated during the confirmation process that, due to the “danger[s]” inherent
whenever a judicial proceeding “is used to accomplish far-reaching societal changes, . . . [t]he judiciary should exercise
restraint in the exercise of its power.” Id. at 985. The district judge rejected the plaintiffs’ assertion that this comment
somehow rendered him “unable to consider the full range of remedies and available law pertinent to their claims.” Id.
The plaintiffs similarly took umbrage with the judge’s prior statement that “[a]ffirmative duties broadly imposed upon
governments and society should not be the result of a court order arising out of an individual lawsuit.” Id. at 986. The
judge disagreed with the plaintiffs’ contention that this comment evinced a belief that “those who have been
systematically the subjects of racism and discrimination [should] be required to win majority support to obtain relief.”
Id. (internal citation omitted).
156 Id. at 984.
157 Id. at 987.
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Under different circumstances, historical practice supports the notion that a judge’s prior public
comments about disputed and controversial legal issues may warrant that judge’s recusal from a
future case. In 2003, for instance, Justice Scalia “gave a public speech . . . in which he spoke
critically of an interpretation of the Establishment Clause that would disallow the ‘under God’
phrase to remain in the pledge of allegiance.”158 When the Supreme Court later granted certiorari
to decide a case presenting exactly that issue, Justice Scalia “announced that he would not sit on
the case.”159 Although Justice Scalia did not explain why he did not participate in the case,160
commentators have almost uniformly surmised that Justice Scalia determined that his prior public
comments mandated his recusal.161
The “distinction between a federal judge’s expression of personal philosophy . . . and his
expression of an opinion on some facet of a particular case which is before him”162 can
potentially explain why recusal was warranted in the pledge of allegiance case but not in African-
American Slave Descendants. Several judges have suggested that non-case-specific comments
about jurisprudential philosophy are less likely to mandate recusal in future cases than questions
about specific cases or issues that the judge may be called upon to adjudicate in the future.163 As a
result, federal judicial nominees may be more inclined to answer general questions about their
legal views than case-specific questions they may need to adjudicate if the Senate ultimately
confirms them.
Historical Practice
As explained above, the rules governing judicial ethics are largely self-enforcing164 and do not
always provide clear answers regarding which types of conduct are permissible or impermissible.

158 Wheeler, supra note 39, at 1071–72 (citing Gina Holland, Scalia: Courts Wrong on Church/State, N.Y. SUN, Jan.
13, 2003, at 2).
159 Id. at 1072.
160 Charles J. Russo, The Supreme Court and Pledge of Allegiance: Does God Still Have a Place in American Schools?,
2004 BYU EDUC. & L.J. 301, 324. Accord Caprice L. Roberts, The Fox Guarding the Henhouse? Recusal and the
Procedural Void in the Court of Last Resort, 57 RUTGERS L. REV. 107, 125 (2004) (“The lack of any reasoned
elaboration from Justice Scalia regarding his decision to recuse in Newdow leaves the public with a limited
understanding of the basis for recusal in the first place.”).
Although Justice Scalia noted in a subsequent opinion that he recused himself in Newdow because he had “said or done
something which require[d]” him to do so, that opinion did not explicitly state the reason for his recusal. See Cheney v.
U.S. Dist. Ct. for D.C., 541 U.S. 913, 916 (2004) (memorandum of Scalia, J.).
161 See, e.g., Rod Dixon, Pledging to God While Getting a Public Education: Why a Wall of Separation Divides
Ceremonial Celebration from Religious Indoctrination: Elk Grove United School District v. Newdow and the Right of
Parental Privacy, 48 J. CATH. LEGAL STUD. 147, 150 n.12 (2009) (“Apparently, Scalia’s public comments about the
lower court’s ruling in Newdow were viewed as criticism of the appellate court ruling.”); Lisa Shaw Roy, The
Establishment Clause and the Concept of Inclusion, 83 OR. L. REV. 1, 4 n.16 (2004) (“Justice Scalia recused himself
from the case apparently due to public comments he had previously made concerning the Ninth Circuit decision in
Newdow.”).
162 See Wilborn v. Wells Fargo Bank, N.A. (In re Wilborn), 401 B.R. 848, 865 (Bankr. S.D. Tex. 2009) (quoting
Samuel v. Univ. of Pittsburgh, 395 F. Supp. 1275, 1278 (W.D. Pa. 1975)).
163 See id. (“The District Court for the Western District of Pennsylvania aptly described ‘the critical distinction between
a federal judge’s expression of personal philosophy (which is certainly permissible) and his expression of an opinion on
some facet of a particular case which is before him (which would be impermissible)’ . . . The Court agrees with this
logic . . . .” (quoting Samuel, 395 F. Supp. at 1278)).
164 See, e.g., MODEL CODE PREAMBLE [1] (“Inherent in all the Rules contained in this Code are the precepts that judges,
individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and
enhance confidence in the legal system.”); id. [3] (“The Model Code of Judicial Conduct . . . is not intended as an
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As a result, judges and judicial candidates often must decide for themselves whether various
actions—including answering questions at a confirmation hearing—violate ethical standards.165
Judicial nominees developing their own standard for responding to Senators’ questions may look
to historical practice for guidance, consulting customs that are informed by both ethical and
constitutional considerations.166 More generally, historical practice can be an important resource
for defining constitutional norms,167 particularly in interpreting the “scope and exercise” of the
“respective powers” of the three branches of government.168
This section of the report examines nominations to the Supreme Court and describes the norms
that have developed surrounding senatorial questioning and nominees’ responses. The review
focuses on Supreme Court confirmation hearings rather than those for the lower courts because
Supreme Court nominations have traditionally involved a more comprehensive examination of
the nominee.169 This section begins by briefly reviewing the development of the modern judicial
confirmation hearing, and then discusses the general constitutional concerns underlying the
exchanges between Senators and judicial nominees. Finally, it explores trends in the types of
questions that nominees are willing to answer. Regarding this final issue, the wide variety of
senatorial questioning and the inherently personal nature of a candidate’s decision to answer a
particular question mean there are numerous exceptions to the general tendencies described
below.
The general standard that many nominees invoke when responding to Senate questioning has
come to be known as the “Ginsburg Rule.”170 During then-Judge Ruth Bader Ginsburg’s Supreme
Court confirmation hearing, she stated that she could offer “no hints, no forecasts, [and] no
previews” of how she might rule on questions that would come before the Supreme Court.171 In
her opening statement, she warned Senators that
Because I am and hope to continue to be a judge, it would be wrong for me to say or to
preview in this legislative chamber how I would cast my vote on questions the Supreme

exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal
conduct by general ethical standards . . . .”); ABA MODEL RULES OF PROFESSIONAL CONDUCT PREAMBLE & SCOPE [10]
(“The legal profession is largely self-governing.”); White v. Nat’l Football League, 585 F.3d 1129, 1140 (8th Cir.
2009) (explaining that “the Code of Conduct” governing sitting federal judges “relies upon self-enforcement.”).
165 See, e.g., Wheeler, supra note 39, at 1076–77 (“Judicial candidates, like Roberts, make a personal judgment about
how to fulfill the ethical requirements of the role of a judge in responding to questions posed by Senators during the
confirmation process. . . . [I]t is ultimately the judicial nominee, whose concern should be preparing to serve as a judge,
who must decide what standard he or she will use to respond to questions.”).
166 See, e.g., id. at 1077. See also, e.g., Confirmation Hearing on the Nomination of John G. Roberts, Jr., To Be Chief
Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 300 (2005) [hereinafter
Roberts Hearings] (statement of John G. Roberts, Jr., J., U.S. Court of Appeals for the District of Columbia Circuit)
(“[I]t’s not just a line that I’m drawing. It’s a line that, as I’ve read the transcripts, every nominee who’s sitting on the
Court today drew.”).
167 See, e.g., Michael Gerhardt, Non-Judicial Precedent, 61 VAND. L. REV. 713, 715–16 (2008).
168 Thomas A. Curtis, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional
Interpretation, 84 COLUM. L. REV. 1758, 1773 (1984). See also, e.g., NLRB v. Noel Canning, 134 S. Ct. 2550, 2559–60
(2014) (noting that the Supreme Court “put[s] significant weight upon historical practice” when interpreting the
separation of powers between the political branches and noting more generally that historical practice can inform the
Court’s interpretation of the Constitution).
169 See, e.g., Vicki C. Jackson, Packages of Judicial Independence: The Selection and Tenure of Article III Judges, 95
GEO. L.J. 965, 1033 (2007).
170 See, e.g., Ringhand & Collins, supra note 17, at 476.
171 Ginsburg Hearings, supra note 14, at 323 (statement of Ruth Bader Ginsburg).
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Court may be called upon to decide. Were I to rehearse here what I would say and how I
would reason on such questions, I would act injudiciously.
Judges in our system are bound to decide concrete cases, not abstract issues. Each case
comes to court based on particular facts and its decision should turn on those facts and the
governing law, stated and explained in light of the particular arguments the parties or their
representatives present. 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.172
Although the refusal to stake out a position on matters that are likely to come before the Court has
become known as the Ginsburg Rule, the principle precedes Justice Ginsburg’s hearing.173
According to one 2018 study, the three Supreme Court nominees who had, at that point, most
frequently “refuse[d] to answer a question on the ground that answering would create the reality
or appearance of bias, would interfere with judicial independence, or would be inappropriate for
some other, similar reason,” all predated Justice Ginsburg’s hearing.174
Historical Background
Nominees to the Supreme Court today go through a confirmation hearing before the Senate
Judiciary Committee.175 But this was not always the case: the modern confirmation hearing, with
nominees testifying before the Committee in person, in a public hearing, is generally traced to the
1955 confirmation hearing of Justice John Marshall Harlan II.176 Since then, the number of
questions that Senators have asked each nominee has increased, as the Senate Judiciary
Committee has grown in size and as individual Senators ask more questions of the nominees.177
Scholars and jurists have pointed to the failed appointment of Judge Robert Bork, in 1987, as a
watershed moment in the development of the modern confirmation hearing.178 President Ronald
Reagan nominated Bork to the Supreme Court in 1987.179 The confirmation hearings were highly

172 Id. at 52.
173 See, e.g., Wheeler, supra note 39, at 1077; Ringhand & Collins, supra note 17, at 476, 485.
174 Ringhand & Collins, supra note 17, at 486–87. The hearings in which this “privilege” was invoked most often, as a
percentage of all the nominee’s answers, were, in order, Justice Abe Fortas’s hearing to become Chief Justice, Justice
William J. Brennan’s hearing to become an Associate Justice, and William H. Rehnquist’s hearing to become an
Associate Justice. Id. at 486. According to this study, out of all Supreme Court nominees subject to confirmation
hearings, Justice Ginsburg most frequently gave “firm” answers staking out positions on specific legal issues or cases.
Id. at 492. Cf. Wedeking & Farganis, supra note 16, at 345 (tracking “nominee candor” over time).
175 See generally, e.g., CRS Report R44234, Supreme Court Appointment Process: Senate Debate and Confirmation
Vote, by Barry J. McMillion.
176 See, e.g., Dion Farganis & Justin Wedeking, “No Hints, No Forecasts, No Previews”: An Empirical Analysis of
Supreme Court Nominee Candor from Harlan to Kagan, 45 LAW & SOC’Y REV. 525, 527 (2011). However, Harlan
Fiske Stone was the first nominee to appear in person before the Senate Judiciary Committee, in 1925, and Felix
Frankfurter, in 1939, was “the first nominee to take unrestricted questions in an open, transcribed, public hearing.”
PAUL M. COLLINS, JR., & LORI A. RINGHAND, SUPREME COURT CONFIRMATION HEARINGS AND CONSTITUTIONAL
CHANGE 35 (2013).
177 See Farganis & Wedeking, supra note 176, at 528; Wedeking & Farganis, supra note 16, at 338–39.
178 See, e.g., COLLINS & RINGHAND, supra note 176, at 196 n.1 (collecting scholarship). See also, e.g., Gregory Korte,
Bork Fight Still Haunts Supreme Court Confirmation Process, USA TODAY (Mar. 7, 2016, 10:23 PM),
https://www.usatoday.com/story/news/politics/2016/03/07/bork-fight-still-looms-over-broken-supreme-court-
confirmation-process/81414374; Nina Totenberg, Robert Bork’s Supreme Court Nomination ‘Changed Everything,
Maybe Forever’, NPR (Dec. 19, 2012, 4:33 PM), https://www.npr.org/sections/itsallpolitics/2012/12/19/167645600/
robert-borks-supreme-court-nomination-changed-everything-maybe-forever [hereinafter Totenberg, Bork].
179 See, e.g., Michael M. Gallagher, Disarming the Confirmation Process, 50 CLEV. ST. L. REV. 513, 524 (2002).
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contentious,180 and the nomination was ultimately defeated by a vote of 58-42.181 Many have
argued that Bork’s nomination failed because he was too forthcoming182 or because the Senate
improperly politicized the confirmation process,183 and that, as a result, subsequent nominees
have been less willing to express their own views on legal issues.184
Others have raised two challenges to this conventional wisdom. First, some have argued that
“Bork’s nomination did not fail because he answered too many questions; it failed because he
gave the wrong answers.”185 Second, as suggested above, nominees have declined to answer
certain questions since the advent of the modern confirmation hearing, predating the Bork hearing
by more than thirty years: in 1955, then-Judge Harlan “avoided answering a question on civil
rights” a mere two questions into his testimony.186 Studies conducted by legal scholars over a
decade ago suggested that as a general matter, judicial candidates’ candor in response to questions
had not significantly decreased over time.187 However, the types of issues discussed at these
hearings have changed.188 According to one study, Senators today are more likely to ask questions
about a nominee’s judicial views, seeking a nominee’s “opinions, thoughts, assessments,
interpretations, or predictions.”189
Constitutional Justifications
Looking to past confirmation hearings, nominees to the Supreme Court have cited three related
but distinct constitutional concerns to justify not answering certain types of questions.190 First,
nominees have voiced concerns about answering specific legal questions outside of the normal
adversarial process envisioned by the Constitution. Specifically, Article III of the Constitution
provides that judges may hear “cases” and “controversies.”191 The Supreme Court has interpreted
this provision to prohibit so-called “advisory opinions” that do not present a true controversy.192

180 E.g., id. at 524–26.
181 133 CONG. REC. S29,121 (daily ed. Oct. 23, 1987).
182 See, e.g., COLLINS & RINGHAND, supra note 176, at 196.
183 See, e.g., Paul R. Dimond, Common Sense about an Uncommon Rejection, 15 LAW & SOC. INQUIRY 767, 768 (1991)
(reviewing ROBERT H. BORK, THE TEMPTING OF AMERICA: THE POLITICAL SEDUCTION OF THE LAW (1990) and ETHAN
BRONNER, BATTLE FOR JUSTICE: HOW THE BORK NOMINATION SHOOK AMERICA (1989)); Frank Guliuzza III, Daniel J.
Reagan & David M. Barrett, The Senate Judiciary Committee and Supreme Court Nominees: Measuring the Dynamics
of Confirmation Criteria, 56 J. POL. 773, 773 (1994) (same); Lily Rothman, How Robert Bork Helped Make Neil
Gorsuch’s Supreme Court Confirmation Possible, TIME (Apr. 7, 2017), http://time.com/4730055/neil-gorsuch-
confirmation-robert-bork-history.
184 See, e.g., COLLINS & RINGHAND, supra note 176, at 196; Totenberg, Bork, supra note 178.
185 COLLINS & RINGHAND, supra note 176, at 197. The scholars Paul Collins and Lori Ringhand have made the case that
Bork’s nomination was defeated because he “was voicing a constitutional vision that large swaths of America no longer
shared.” COLLINS & RINGHAND, supra note 176, at 200. Others have highlighted that the nominee’s views appeared to
be inconsistent. See Nina Totenberg, The Confirmation Process and the Public: To Know or Not to Know, 101 HARV.
L. REV. 1213, 1221 (1988).
186 Farganis & Wedeking, supra note 176, at 534.
187 See id. at 540; Wedeking & Farganis, supra note 16, at 344–45.
188 See, e.g., COLLINS & RINGHAND, supra note 176, at 101, 106.
189 See Farganis & Wedeking, supra note 176, at 536.
190 Cf., e.g., Ringhand & Collins, supra note footnote 17, at 478 (identifying two justifications for refusing to answer
questions).
191 U.S. CONST. art. III, § 2.
192 See, e.g., Massachusetts v. EPA, 549 U.S. 497, 516 (2007).
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Instead, judges resolve discrete disputes through the adversarial process.193 As the Supreme Court
explained in one case, this “cases and controversies” requirement “tends to assure that the legal
questions presented to the court will be resolved, not in the rarified atmosphere of a debating
society, but in a concrete factual context conducive to a realistic appreciation of the consequences
of judicial action.”194 Consequently, nominees to the Supreme Court have been reluctant to
respond to hypotheticals posed by Senators, citing concerns about their opining on an issue absent
briefing and argument from adversarial parties.195
The second constitutional concern is grounded in the Constitution’s due process guarantees, and
specifically in the assurance that cases will be resolved by unbiased judges.196 An “impartial
judge” is a “necessary component of a fair trial.”197 Consequently, nominees have avoided giving
answers that would appear to “prejudge” future cases that might come before the Court,198 so as
to avoid depriving future parties of impartial due process of law.199

193 See, e.g., Flast v. Cohen, 392 U.S. 83, 96–97 (1968); Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 242 (1937). See
generally, e.g., Confirmation Hearing on the Nomination of Samuel A. Alito, Jr. To Be an Associate Justice of the
Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 514 (2006)
[hereinafter Alito Hearings] (statement of Samuel A. Alito, Jr., J., U.S. Court of Appeals for the Third Circuit)
(describing his view of the adversarial process).
194 Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, 454 U.S. 464, 472 (1982).
195 See, e.g., The Nomination of Elena Kagan To Be an Associate Justice of the Supreme Court of the United States:
Hearing Before the S. Comm. on the Judiciary, 111th Cong. 248 (2010) [hereinafter Kagan Hearings] (statement of
Elena Kagan, Solicitor Gen. of the United States); Ginsburg Hearings, supra note 14, at 178 (statement of Ruth Bader
Ginsburg); Roberts Hearings, supra note 166, at 236 (statement of John G. Roberts, Jr.).
196 See generally, e.g., Caperton v. A.T. Massey Coal Co., 556 U.S. 868, 883–84 (2009).
197 Weiss v. United States, 510 U.S. 163, 178 (1994).
198 See, e.g., Confirmation Hearing on the Nomination of Hon. Sonia Sotomayor, To Be an Associate Justice of the
Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 111th Cong. 113 (2009)
[hereinafter Sotomayor Hearings] (statement of Sonia Sotomayor, J., U.S. Court of Appeals for the Second Circuit);
Roberts Hearings, supra note 166, at 229 (statement of John G. Roberts, Jr.); Ginsburg Hearings, supra note 14, at 253
(statement of Ruth Bader Ginsburg); The Nomination of Judge Clarence Thomas To Be Associate Justice of the
Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, pt. 1, 102d Cong. 180 (1991)
[hereinafter Thomas Hearings] (statement of Clarence Thomas, J., U.S. Court of Appeals for the District of Columbia
Circuit); Nominations of William H. Rehnquist, of Arizona, and Lewis F. Powell, Jr., of Virginia, To Be Associate
Justices of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 92d Cong. 193
(1971) [hereinafter Rehnquist Hearings] (statement of William H. Rehnquist, Assistant Att’y Gen. of the United
States).
199 See Ginsburg Hearings, supra note 14, at 52 (statement of Ruth Bader Ginsburg). At least one scholar has argued
that this “‘prejudging’ objection” should not prevent nominees from commenting on past Supreme Court cases, relying
in part on the Supreme Court’s decision in Republican Party of Minnesota v. White. Amar, supra note 20; see also
Republican Party of Minn. v. White, 536 U.S. 765 (2002). In Republican Party of Minnesota v. White, the Supreme
Court rejected the contention that judicial “impartiality” provided a governmental interest sufficiently compelling to
uphold under the First Amendment a state ethical standard prohibiting judicial candidates from announcing their views
on disputed legal or political issues. 536 U.S. at 775–84. In reaching this conclusion, the majority opinion made a
number of statements regarding judicial impartiality and the types of statements judges should be able to make while
running for office. See id. However, this decision might be distinguishable from the context of the federal selection
process, because federal judges are not elected to office. See id. at 787–88. Further, the fact that a judicial candidate has
a First Amendment right to make a certain statement does not necessarily mean that the candidate should or must make
that statement. See N.D. Family Alliance, Inc. v. Bader, 361 F. Supp. 2d 1021, 1040, 1045 (D.N.D. 2005) (concluding
that, even though “judicial candidates must be allowed to impart whatever information they choose about their views
on political, legal, and social issues, and their personal philosophy—without restriction,” a candidate who exercises that
right may nonetheless “create a serious ethical dilemma for himself or herself that would require recusal at a later
date”).
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The final constitutional justification for declining to respond to certain questions is closely related
to this concern about due process, but is grounded in separation-of-powers concerns.200 As
discussed above, Article III was designed to establish an independent judiciary insulated from
political pressures.201 Accordingly, courts have policed attempts by Congress to influence the
decision of cases and controversies properly within the purview of the judicial branch, where
Congress has “passed the limit which separates the legislative from the judicial power.”202 Citing
the importance of judicial independence from the legislative branch, nominees have avoided
making any “pledge” or “promise” on how they would rule on a particular case or issue in
exchange for confirmation.203
Constitutional concerns motivating judicial nominees to decline to answer certain questions
weigh against the constitutional responsibility of the Senate to give advice and consent204 to
presidential nominees.205 The Senate essentially holds the power to “veto . . . the President’s
power of appointment.”206 Senators have stated that candidate evasiveness frustrates their ability
to perform their constitutional role—and in some cases, have withheld votes because a candidate
declined to answer questions.207 Nominees themselves have acknowledged that Senators may feel
obligated to ask questions that the nominees nonetheless believe that they may not answer.208
General Trends in Questions and Answers
Supreme Court nominees have generally declined to stake out positions on issues or factual
circumstances that are likely to come before the Court in future cases, a practice referred to by
some as the Ginsburg Rule.209 This standard has required nominees to assess whether various
issues are likely to come before the Court, and nominees may disagree with Senators regarding

200 See, e.g., Confirmation Hearing on the Nomination of Hon. Brett M. Kavanaugh To Be an Associate Justice of the
Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 115th Cong. 123–24 (2018)
[hereinafter Kavanaugh Hearings] (statement of Brett M. Kavanaugh, J., U.S. Court of Appeals for the D.C. Circuit).
201 See, e.g., United States v. Hatter, 532 U.S. 557, 568 (2001).
202 United States v. Klein, 80 U.S. (13 Wall.) 128, 147 (1871).
203 See, e.g., Confirmation Hearing on the Nomination of Hon. Neil M. Gorsuch To Be an Associate Justice of the
Supreme Court of the United States: Hearing Before the S. Comm. on the Judiciary, 115th Cong. 101, 258 (2017)
[hereinafter Gorsuch Hearings] (statement of Neil M. Gorsuch, J., U.S. Court of Appeals for the Tenth Circuit); Kagan
Hearings, supra note 195, at 57 (statement of Elena Kagan); Ginsburg Hearings, supra note 14, at 265 (statement of
Ruth Bader Ginsburg).
204 U.S. CONST. art. II, § 2.
205 See, e.g., Ginsburg Hearings, supra note 14, at 114–15 (statement of Sen. Joseph R. Biden, Jr., Chairman, S.
Comm. on the Judiciary).
206 Myers v. United States, 272 U.S. 52, 120 (1926).
207 See, e.g., Wheeler, supra note 39, at 1068 (discussing confirmation of Chief Justice Roberts). But see Wedeking &
Farganis, supra note 16, at 362 (showing that statistically, a nominee’s lack of candor does not seem to cause Senators
to vote against that nominee).
208 See, e.g., Sotomayor Hearings, supra note 198, at 375 (statement of Sonia Sotomayor); Nomination of William
Joseph Brennan, Junior, of New Jersey, To Be Associate Justice of the Supreme Court of the United States: Hearings
Before the S. Comm. on the Judiciary, 85th Cong. 18 (1937) [hereinafter Brennan Hearings] (statement of William J.
Brennan).
209 See generally, e.g., Ruth Bader Ginsburg, Gillian Metzger & Abbe Gluck, A Conversation with Justice Ruth Bader
Ginsburg, 25 COLUM. J. GENDER & L. 6, 22 (2013) (statement of Ruth Bader Ginsburg, J., Supreme Court of the United
States) (describing the “Ginsburg rule, invoked in Senate Judiciary Committee confirmation hearings,” as “Please do
not ask me about a case that is before the Court or an issue that may come before the Court.”). See also, e.g.,
Sotomayor Hearings, supra note 198, at 113 (statement of Sonia Sotomayor) (declining to respond because “the
Supreme Court has not addressed this question yet, and there’s a strong likelihood it may in the future”).
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that likelihood.210 Nominees have also typically declined to answer questions that do not
expressly ask for their views on a particular case, if answering would nonetheless “suggest[]” that
the nominee has prejudged a case.211
Because nominees are unlikely to answer direct questions regarding their views on particular
issues, to attempt to determine how a nominee might resolve cases if appointed to the Supreme
Court, Senators have instead asked about a nominee’s
 judicial philosophy,
 prior statements on various issues,
 views on previously decided cases of the Supreme Court, and
 views on judicial procedures and ethics.
As a general matter, nominees are more willing to talk about issues or cases that they believe are
“settled”212 or “fundamental.”213
One exchange from the 1971 hearing on then-Assistant Attorney General Rehnquist’s
confirmation to the Court as an Associate Justice illustrates this dynamic.214 A Senator noted that
the nominee had stated during the hearings that it “would be inappropriate to advance a definition
of due process.”215 The Senator contrasted this reluctance with a prior statement of the nominee:
in a 1959 law review article, Rehnquist had argued that the Senate should “thoroughly inform[]
itself on the judicial philosophy of a Supreme Court nominee.”216 In the article, Rehnquist asked,
in reference to the 1957 confirmation of Justice Charles Evans Whittaker, “what could have been

210 See, e.g., Gorsuch Hearings, supra note 203, at 268 (statement of Neil M. Gorsuch) (declining to discuss the
emoluments clause); Kagan Hearings, supra note 195, at 84 (statement of Elena Kagan) (declining to discuss Bush v.
Gore, 531 U.S. 98 (2000)); Roberts Hearings, supra note 166, at 300 (statement of John G. Roberts, Jr.) (declining to
discuss United States v. Morrison, 529 U.S. 598 (2000)).
211 E.g., Sotomayor Hearings, supra note 198, at 433 (statement of Sonia Sotomayor) (declining to discuss the
arguments regarding a constitutional right to same sex marriage because, in the nominee’s view, “[t]his is the type of
situation where even the characterizing of whatever the court may do as one way or another suggests that I have both
prejudged an issue and that I come to that issue with my own personal views suggesting an outcome”).
212 See, e.g., Alito Hearings, supra note 193, at 352 (statement of Samuel A. Alito, Jr.); Roberts Hearings, supra note
166, at 207 (statement of John G. Roberts, Jr.). See generally, e.g., Alito Hearings, supra note 193, at 561 (statement of
Sen. John Cornyn) (“[W]hat I have concluded . . . is the more settled, . . . the more accepted in the society, in our
culture, the more free nominees feel to talk about it . . . .”). Cf., e.g., Nomination of Anthony M. Kennedy To Be
Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary, 100th
Cong. 233 (1987) [hereinafter Kennedy Hearings] (statement of Anthony M. Kennedy, J., U.S. Court of Appeals for the
Ninth Circuit) (“Well, I guess we have a disagreement as to whether or not [the constitutionality of capital punishment]
is well settled, Senator.”).
213 See, e.g., Alito Hearings, supra note 193, at 318–19 (statement of Samuel A. Alito, Jr.); see also Ginsburg
Hearings, supra note 14, at 161 (statement of Ruth Bader Ginsburg); Rehnquist Hearings, supra note 198, at 39
(statement of William H. Rehnquist). Senator Arlen Specter often asked for nominees’ opinions on certain “rockbed”
issues, most frequently seeking their opinion on Marbury v. Madison and other doctrines concerning the power of the
courts. See, e.g., Ginsburg Hearings, supra note 14, at 187, 291 (statements of Sen. Arlen Specter); Thomas Hearings,
supra note 198, at 495–96 (statement of Sen. Arlen Specter); Kennedy Hearings, supra note 212, at 223–24 (statement
of Sen. Arlen Specter); Scalia Hearings, supra note 15, at 83 (statement of Sen. Arlen Specter).
214 Rehnquist Hearings, supra note 198, at 189 (statement of William H. Rehnquist).
215 Id. (statement of Sen. John V. Tunney). See also id. at 157 (statement of William H. Rehnquist) (declining to
respond to question about his views on due process).
216 Id. at 154–55 (statement of Sen. Charles McC. Mathias, Jr.) (quoting the law review article).
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more important to the Senate than Mr. Justice Whittaker’s views on equal protection and due
process?”217
In response to the Senator’s questioning about this article, the nominee said that he had not
“changed [his] mind that the Senate ought to be interested in a nominee’s views,” but said that he
had gained “an increasing sympathy for the problem of the nominee to respond to very legitimate
questions from the Senators without in some way giving the appearance of prejudging issues that
might come before him.”218 He was willing to respond to the Senator’s question by “advert[ing]
to settled doctrines of due process,” affirming doctrines that were “so well settled” that a nominee
“need have no reservation” about stating them.219 In response to further questioning,220 Rehnquist
also generally described how he would approach any case presenting an unsettled question of due
process, stating that he would look to precedent and ratification debates, but would not rule on the
basis of his “subjective notions of fairness.”221
Other nominees may stake out clear “lines” regarding the types of questions they are willing to
answer and refuse to cross those lines even with respect to settled issues.222 Some nominees
taking this position have stated concerns about a “slippery slope.”223 Then-Judge Samuel Alito
invoked this view to avoid taking a position on a hypothetical that, from his perspective,
“seem[ed] perfectly clear.”224 A Senator had asked whether it would be constitutional for the
Senate to require sixty votes, rather than a majority, to confirm a nominee to the Supreme
Court.225 Alito responded by saying that he did not think that he should answer “constitutional
questions like that.”226 The Senator pressed him, asking whether it would be constitutional for the
Senate to allow a majority vote rather than a two-thirds vote for impeachment.227 Judge Alito at
first seemed about to answer the question, saying, “there are certain questions that seem perfectly
clear, and I guess there is no harm in answering,” but ultimately declined to do so, saying that this
was a “slippery slope,” and if he “start[ed] answering the easy questions,” he would then “be
sliding down the ski run and into the hard questions.”228

217 Id. at 189 (statement of Sen. John V. Tunney) (internal quotation marks omitted).
218 Id. (statement of William H. Rehnquist).
219 Id. at 189–90 (statement of William H. Rehnquist).
220 Id. at 190 (statement of Sen. John V. Tunney) (“[W]hat standard would you utilize in deciding a totally
unprecedented due process case?”).
221 Id. (statement of William H. Rehnquist).
222 See, e.g., Roberts Hearings, supra note 166, at 300 (statement of John G. Roberts, Jr.) (stating that he is unwilling
“to comment on the correctness o[r] incorrectness of a particular decision” and asserting that this is a “line” that “every
nominee who’s sitting on the Court today drew”).
223 See, e.g., Scalia Hearings, supra note 15, at 58, 85 (statements of Antonin G. Scalia, J., U.S. Court of Appeals for
the District of Columbia Circuit).
224 Alito Hearings, supra note 193, at 430 (statement of Samuel A. Alito, Jr.).
225 Id. (statement of Sen. Lindsey O. Graham).
226 Id. (statement of Samuel A. Alito, Jr.).
227 Id. (statement of Sen. Lindsey O. Graham). Cf. U.S. CONST. art. I, § 3 (“The Senate shall have the sole Power to try
all Impeachments. . . . And no Person shall be convicted without the Concurrence of two thirds of the Members
present.”).
228 Alito Hearings, supra note 193, at 430–31 (statement of Samuel A. Alito, Jr.) (internal quotation marks omitted).
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Then-Judge Ginsburg made a similar statement in her confirmation hearing when she declined to
discuss a certain case involving an executive branch policy that she believed might be adopted
again by a future Administration.229 She said:
I sense that I am in the position of a skier at the top of that hill, because you are asking me
how I would have voted in Rust v. Sullivan . . . . Another member of this committee would
like to know how I might vote in that case or another one. I have resisted descending that
slope, because once you ask me about this case, then you will ask me about another case
that is over and done, and another case. So I believe I must draw the line at the cases I have
decided.230
To take another example, then-Judge Antonin Scalia refused to state his opinion on any prior
Supreme Court decisions, declining even to discuss Marbury v. Madison, the foundational case
establishing the power of courts to review laws under the Constitution.231 He acknowledged that
other nominees had “tried to answer some questions and not answered the other,” but concluded
that he would not take that path.232 He reasoned that if his answer would be obvious—as if he
were to endorse the holdings of Marbury v. Madison—then the Senators “do not need an answer,
because your judgment of my record and my reasonableness and my moderation will lead you to
conclude, heck, it is so obvious, anybody that we think is not a nutty-nutty would have to come
out that way.”233 On the other hand, if his views on an issue were not obvious, then he believed
that his announcement of those views would “really prejudice[e] future litigants.”234
General Judicial Philosophy
Nominees seem most willing to discuss their general philosophies of law,235 including their
approaches to constitutional236 and statutory237 interpretation. Thus, for example, then-Judge

229 Ginsburg Hearings, supra note 14, at 288 (statement of Ruth Bader Ginsburg).
230 Id. (citing Rust v. Sullivan, 500 U.S. 173 (1991)).
231 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803); Scalia Hearings, supra note 15, at 33 (statement of
Antonin G. Scalia) (“I do not think I should answer questions regarding any specific Supreme Court opinion, even one
as fundamental as Marbury v. Madison.”). However, like other nominees, Justice Scalia was willing to describe certain
decisions as “fundamental,” see id., or as “settled,” see id. at 87–88.
232 Scalia Hearings, supra note 15, at 86 (statement of Antonin G. Scalia). In his own hearing, Chief Justice Roberts
discussed the difficulty of deciding which cases he could discuss, contrasting his approach to that of Justice Scalia. See
Roberts Hearings, supra note 166, at 261–64.
233 Scalia Hearings, supra note 15, at 87 (statement of Antonin G. Scalia).
234 Id. (statement of Antonin G. Scalia).
235 See, e.g., Kavanaugh Hearings, supra note 200, at 110 (statement of Brett M. Kavanaugh); Gorsuch Hearings,
supra note 203, at 130–31 (statements of Neil M. Gorsuch); Kagan Hearings, supra note 195, at 103, 149–50
(statements of Elena Kagan); Roberts Hearings, supra note 166, at 158 (statement of John G. Roberts, Jr.); Rehnquist
Hearings, supra note 198, at 19–20 (statements of William H. Rehnquist).
236 See, e.g., Nomination of the Honorable Amy Coney Barrett to be an Associate Justice of the Supreme Court of the
United States: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (Oct. 13, 2020),
https://www.judiciary.senate.gov/meetings/nomination-of-the-honorable-amy-coney-barrett-to-be-an-associate-justice-
of-the-supreme-court-of-the-united-states-day-2 [hereinafter Barrett Hearings Day 2]; Gorsuch Hearings, supra note
203, at 156–58 (statements of Neil M. Gorsuch); Kagan Hearings, supra note 195, at 61–63, 81–82 (statements of
Elena Kagan); Alito Hearings, supra note 193, at 429, 465 (statements of Samuel A. Alito, Jr.); Roberts Hearings,
supra note 166, at 182 (statement of John G. Roberts, Jr.); Thomas Hearings, supra note 198, at 112–14 (statement of
Clarence Thomas); Kennedy Hearings, supra note 212, at 85–86 (statement of Anthony M. Kennedy); Scalia Hearings,
supra note 15, at 48–49, 108 (statements of Antonin G. Scalia).
237 See, e.g., Kavanaugh Hearings, supra note 200, at 194–95 (statements of Brett M. Kavanaugh); Kagan Hearings,
supra note 195, at 150 (statement of Elena Kagan); Gorsuch Hearings, supra note 203, at 131, 340 (statement of Neil
M. Gorsuch); Ginsburg Hearings, supra note 14, at 161, 224 (statements of Ruth Bader Ginsburg); Scalia Hearings,
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Clarence Thomas was asked repeatedly whether he believed in natural law238 as a principle of
constitutional interpretation, to which he responded in the negative.239 Similarly, then-Judge Neil
Gorsuch was asked to explain his commitment to originalism.240 And, in response to a line of
questioning that asked whether she believed in the idea of a living Constitution, then-Solicitor
General Elena Kagan responded by explaining that while she believed the Constitution’s general
principles may be applied to new circumstances in new ways, she did not “like what people
associate” with the term “living Constitution.”241 Prior Supreme Court nominees have also given
examples of jurists whom they admire242—although then-Judge Ginsburg, at least, “stay[ed] away
from the living” when naming her legal role models.243
Judicial nominees may also discuss their general approach to evaluating precedent and stare
decisis, the doctrine governing when courts should adhere to previously decided cases.244
Senators will sometimes ask for a nominee’s views on stare decisis as a way of gauging whether
the nominee would be willing to overturn certain, often controversial, Supreme Court cases. For
example, Senator Arlen Specter engaged in a lengthy discussion with then-Judge John Roberts
about stare decisis in the context of the two primary Supreme Court cases establishing a right to
an abortion.245 The nominee spoke generally about the principles of stare decisis, going so far as
to say that certain factors in the analysis were “critically important,”246 but repeatedly declined to
say how he would apply principles in a particular case—or whether he agreed or disagreed with
those prior Supreme Court cases.247
Nominee’s Prior Statements
Supreme Court nominees are generally willing to discuss their own prior work,248 including both
prior judicial opinions249 and extra-judicial statements.250 If nominees have written about a

supra note 15, at 65–67 (statement of Antonin G. Scalia).
238 See generally CRS Report R45129, Modes of Constitutional Interpretation, by Brandon J. Murrill (discussing the
natural law theory of constitutional interpretation, along with other constitutional theories).
239 See, e.g., Thomas Hearings, supra note 198, at 112–14, 128–29, 147–48.
240 See, e.g., Gorsuch Hearings, supra note 203, at 155–57, 242.
241 Kagan Hearings, supra note 195, at 159 (statement of Elena Kagan).
242 See, e.g., Gorsuch Hearings, supra note 203, at 65 (statement of Neil M. Gorsuch); Kagan Hearings, supra note
195, at 56 (statement of Elena Kagan).
243 Ginsburg Hearings, supra note 14, at 214 (statement of Ruth Bader Ginsburg).
244 See, e.g., Kagan Hearings, supra note 195, at 177, 194–95 (statement of Elena Kagan); Roberts Hearings, supra
note 166, at 180–81 (statement of John G. Roberts, Jr.); Ginsburg Hearings, supra note 14, at 197 (statement of Ruth
Bader Ginsburg); Thomas Hearings, supra note 198, at 134–35 (statement of Clarence Thomas); Rehnquist Hearings,
supra note 198, at 19 (statement of William H. Rehnquist).
245 Roberts Hearings, supra note 166, at 142–48.
246 Id. at 143 (statement of John G. Roberts, Jr.).
247 See id. at 142–48.
248 See generally, e.g., Alito Hearings, supra note 193, at 38 (statement of Sen. Charles E. Schumer) (“Even under the
so-called Ginsburg precedent, which was endorsed by Judge Roberts, Republican Senators and the White House, you
have an obligation to answer questions on topics that you have written about.”).
249 See, e.g., Kavanaugh Hearings, supra note 200, at 119–20 (statements of Brett M. Kavanaugh); Gorsuch Hearings,
supra note 203, at 302–04 (statement of Neil M. Gorsuch); Alito Hearings, supra note 193, at 466 (statement of Samuel
A. Alito, Jr.); Ginsburg Hearings, supra note 14, at 196 (statement of Ruth Bader Ginsburg); Scalia Hearings, supra
note 15, at 87 (statement of Antonin G. Scalia).
250 See, e.g., Kagan Hearings, supra note 195, at 121 (statement of Elena Kagan); Alito Hearings, supra note 193, at
432 (statement of Samuel A. Alito, Jr.).
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particular issue, they may explain their position on that topic even if they otherwise would have
declined to stake out positions on issues that are likely to come before the Court.251 This practice
may also account for some variance in the topics that different nominees are willing to discuss. In
his hearing, then-Judge John Roberts explained that he was unwilling to comment on whether
particular decisions were correctly decided, notwithstanding the fact that Justice Ginsburg in her
confirmation hearing had discussed some particular issues—namely, her view of Roe v. Wade—
because she, unlike Judge Roberts, “had written extensively on that subject and she thought that
her writings were fair game for discussion.”252
Sometimes nominees use the hearing to disclaim prior statements or explain that they would not
adhere to a particular view as a Supreme Court Justice.253 For example, Chief Justice Roberts was
asked in his confirmation hearing about certain memoranda he wrote while working in the
Reagan Administration expressing the view “that bills stripping the Court’s jurisdiction were
constitutionally permissible.”254 The nominee said that if he “were to look at the question today,”
he did not “know where [he] would come out.”255 He later added, “I certainly wouldn’t write
everything today as I wrote it back then, but I don’t think any of us would do things or write
things today as we did when we were 25 and had all the answers.”256 At times, nominees have
explained that they took certain positions only because they were acting as an advocate,
distinguishing that role from the role of a judge.257 Other times, however, nominees have adhered
to and explained their prior non-judicial statements.258
While nominees will usually discuss their previously expressed views, most Supreme Court
candidates are reluctant to discuss their personal opinions on various issues.259 In two relatively
recent hearings, when then-Judge Gorsuch was asked about his personal views on marriage

251 Compare, e.g., Ginsburg Hearings, supra note 14, at 205–08 (statements of Ruth Bader Ginsburg) (discussing her
writings on the subject of abortion), with id. at 265 (statement of Ruth Bader Ginsburg) (declining to state whether
capital punishment is constitutional because she had “never ruled on a death penalty case,” had “never written about it,”
and had “never spoken about it in the classroom”). See also, e.g., id. at 221–22.
252 Roberts Hearings, supra note 166, at 376 (statement of John G. Roberts, Jr.).
253 But see, e.g., Scalia Hearings, supra note 15, at 59 (statement of Antonin G. Scalia) (declining to say whether or not
he still held views announced in a prior article).
254 Roberts Hearings, supra note 166, at 210 (statement of Sen. Herbert H. Kohl).
255 Id. (statement of John G. Roberts, Jr.).
256 Id. at 212 (statement of John G. Roberts, Jr.).
257 See, e.g., Gorsuch Hearings, supra note 203, at 273–74 (statement of Neil M. Gorsuch); Kagan Hearings, supra
note 195, at 92–93 (statement of Elena Kagan); Sotomayor Hearings, supra note 198, at 143 (statement of Sonia
Sotomayor); Alito Hearings, supra note 193, at 322–23 (statement of Samuel A. Alito, Jr.); Roberts Hearings, supra
note 166, at 210 (statement of John G. Roberts, Jr.).
258 E.g., Ginsburg Hearings, supra note 14, at 243–44 (statements of Ruth Bader Ginsburg). See also, e.g., Kagan
Hearings, supra note 195, at 226 (statement of Elena Kagan); Kennedy Hearings, supra note 212, at 121 (statement of
Anthony M. Kennedy).
259 See, e.g., Gorsuch Hearings, supra note 203, at 75 (statement of Neil M. Gorsuch); Kagan Hearings, supra note
195, at 123–24 (statement of Elena Kagan); Ginsburg Hearings, supra note 14, at 263–64 (statements of Ruth Bader
Ginsburg). See generally Farganis & Wedeking, supra note 176, at 543 (showing that in general, “questions directed
towards a nominee’s beliefs and ideas are more likely to trigger nonforthcoming responses than questions about basic
factual information.”). But see, e.g., Kagan Hearings, supra note 195, at 71 (statement of Elena Kagan) (affirming
previously stated personal opposition to “the ‘Don’t ask, don’t tell’ policy”); The Nomination of Judge Sandra Day
O’Connor of Arizona To Serve as an Associate Justice of the Supreme Court of the United States: Hearings Before the
S. Comm. on the Judiciary, 97th Cong. 125 (1981) [hereinafter O’Connor Hearings] (statement of Sandra Day
O’Connor, J., Arizona Court of Appeals) (stating personal opposition to abortion). Cf. Kavanaugh Hearings, supra note
200, at 281 (statement of Brett M. Kavanaugh) (stating that although he had previously described a legal argument as
his “personal opinion,” he was in fact stating the government’s position in the matter).
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equality and when then-Solicitor General Kagan was asked whether she personally believed that
individuals possess a fundamental right to bear arms, both nominees declined to answer the
questions and instead stated only that they accepted prior Supreme Court decisions on these
issues.260 This approach likely stems from the modern belief, frequently echoed by nominees, that
a judge’s personal views should not provide a basis for deciding a case.261 Senators have asked
generally whether nominees’ personal or political views will influence their decisions in
particular cases,262 including whether nominees’ religious faith would influence their decisions.263
For example, Justice Amy Coney Barrett was asked about a prior statement affirming her
commitment to the Catholic Church’s position on abortion.264 She confirmed that she had signed
the statement as a private citizen, but said that it would now be inappropriate, as a sitting judge, to
express her current private views on the matter.265 She further emphasized that she believed her
personal religious views were distinct from—and should not influence—her “task of applying the
law as a judge.”266
At times, nominees’ personal lives have become a central subject in their confirmation
hearings.267 Examples come from Justice Thomas’s confirmation hearings, which were extended
to examine sexual harassment allegations,268 and Justice Brett Kavanaugh’s hearings, which were
extended to examine sexual assault allegations.269 Justice Anthony Kennedy was questioned at
length regarding his memberships in clubs that restricted membership to white males—and on
what that membership implied about his views on discrimination more generally.270 Justice Sonia
Sotomayor was questioned about her membership on the board of the Puerto Rican Legal Defense
Fund and her involvement with the various cases that the group supported.271

260 Gorsuch Hearings, supra note 203, at 173; Kagan Hearings, supra note 195, at 284–85.
261 See, e.g., Gorsuch Hearings, supra note 203, at 65–66 (statement of Neil M. Gorsuch); Kagan Hearings, supra note
195, at 69 (statement of Elena Kagan); Alito Hearings, supra note 193, at 355–56 (statement of Samuel A. Alito, Jr.);
Roberts Hearings, supra note 166, at 205 (statement of John G. Roberts, Jr.); Kennedy Hearings, supra note 212, at 91
(statement of Anthony M. Kennedy). See generally, e.g., Ginsburg Hearings, supra note 14, at 52 (statement of Ruth
Bader Ginsburg) (“[B]ecause you are considering my capacity for independent judging, my personal views on how I
would vote on a publicly debated issue were I in your shoes—were I a legislator—are not what you will be closely
examining.”).
262 See supra note 261.
263 See, e.g., Alito Hearings, supra note 193, at 566–67; Roberts Hearings, supra note 166, at 146; Brennan Hearings,
supra note 208, at 34. Cf. Gorsuch Hearings, supra note 203, at 243; Kagan Hearings, supra note 195, at 129, 144–45.
264 Barrett Hearings Day 2, supra note 236.
265 Id.
266 Id.
267 One well-known example comes from the confirmation hearings of Robert Bork: a local reporter had procured a list
of the nominee’s video rentals from a D.C. video store. See, e.g., Michael Dolan, Borking Around, THE NEW REPUBLIC
(Dec. 20, 2012), https://newrepublic.com/article/111331/robert-bork-dead-video-rental-records-story-sparked-privacy-
laws. Senators largely condemned this tactic as an improper invasion of privacy during the confirmation hearings. See
The Nomination of Robert H. Bork To Be Associate Justice of the Supreme Court of the United States: Hearings Before
the S. Comm. on the Judiciary, pt. 3, 100th Cong. 2819 (1987).
268 See generally Thomas Hearings, supra note 198, pt. 4.
269 See Kavanaugh Hearings, supra note 200, at 627, 633.
270 See Kennedy Hearings, supra note 212, at 104–11, 195. Justice Alito was, somewhat similarly, questioned about his
affiliation with Concerned Alumni of Princeton. Alito Hearings, supra note 193, at 333–36, 455–57, 495–98, 512–13.
271 Sotomayor Hearings, supra note 198, at 140–45, 351, 426–27.
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Previously Decided Supreme Court Decisions
Senators generally recognize that they should not ask nominees about pending cases, but will
sometimes ask nominees about previously decided cases. Senators may hope that nominees’
views on past cases reveal nominees’ beliefs on issues that are still contested.272 Nominees’
willingness to respond to these types of questions varies widely. As mentioned above, then-Judge
Scalia refused as a general rule to give his opinion on any previously decided cases of the
Supreme Court,273 going so far as to refuse to state whether he agreed with Marbury v.
Madison,274 a case that he nonetheless acknowledged in the hearing as “fundamental”275 and one
he had previously cited in his capacity as a federal appellate judge.276 Other Supreme Court
nominees have felt free to agree with Marbury v. Madison.277
As with other issues, nominees’ willingness to give their opinions on whether a prior case was
correctly decided may turn on how likely they believe the issue presented in that case is to
recur.278 Thus, a nominee might decline to discuss a case that presents historically unique factual
circumstances if they believe that the legal issues or principles in that case may come again
before the Supreme Court. For example, then-Solicitor General Kagan was asked for her “view
of”279 Bush v. Gore, the decision of the Supreme Court that reversed the Florida Supreme Court’s
order requiring a recount of ballots in the 2000 presidential election.280 Kagan agreed that the
particular circumstances of that case would “never come before the Court again,” but said that
“the question of when the Court should get involved in election contests in disputed elections

272 To take just one example, during Justice Kagan’s confirmation hearing, Senator Lindsey Graham questioned Justice
Kagan about the overturning of Plessy v. Ferguson, 163 U.S. 537 (1896), in Brown v. Board of Education, 347 U.S.
483 (1954), and then pivoted to questions about Roe v. Wade, 410 U.S. 113 (1975), asking whether subsequent
developments in the law and world at large were similar to those that had occurred between Plessy and Brown. Kagan
Hearings, supra note 195, at 261–62. See generally, e.g., Gorsuch Hearings, supra note 203, at 75 (statement of Sen.
Charles E. Grassley) (stating that questions “about old cases, whether they were correctly decided” is “another way of
asking” the nominee “to make promises and commitments about how you will rule on particular issues”).
273 Scalia Hearings, supra note 15, at 33 (statement of Antonin G. Scalia).
274 5 U.S. (1 Cranch) 137 (1803).
275 Scalia Hearings, supra note 15, at 33 (statement of Antonin G. Scalia). See also id. at 88 (“Marbury v. Madison is a
pillar . . . I would just say it is a very accepted and settled part of our current system, and it would be an enormous
change to go back.”).
276 See Moore v. U.S. House of Representatives, 733 F.2d 946, 958 (D.C. Cir. 1984) (Scalia, J., concurring).
277 See Kavanaugh Hearings, supra note 200, at 224 (statement of Brett M. Kavanaugh); Gorsuch Hearings, supra note
203, at 91 (statement of Neil M. Gorsuch); Kagan Hearings, supra note 195, at 181 (statement of Elena Kagan); Alito
Hearings, supra note 193, at 409, 538 (statement of Samuel A. Alito, Jr.); Roberts Hearings, supra note 166, at 261,
342 (statement of John G. Roberts, Jr.); Ginsburg Hearings, supra note 14, at 198 (statement of Ruth Bader Ginsburg);
Kennedy Hearings, supra note 212, at 93 (statement of Anthony M. Kennedy).
278 See, e.g., Kagan Hearings, supra note 195, at 84 (statement of Elena Kagan); Alito Hearings, supra note 193, at 454
(statement of Samuel A. Alito, Jr.); Roberts Hearings, supra note 166, at 261 (statements of John G. Roberts, Jr.);
Ginsburg Hearings, supra note 14, at 288 (statement of Ruth Bader Ginsburg); O’Connor Hearings, supra note 259, at
108 (statement of Sandra Day O’Connor). See generally, e.g., Lori A. Ringhand, “I’m Sorry, I Can’t Answer That”:
Positive Scholarship and the Supreme Court Confirmation Process, 10 U. PA. J. CONST. L. 331, 340–44 (2008) (noting
that nominees have stated that “they will discuss ‘settled’ cases but are unwilling to discuss ‘unsettled’ cases because
such cases raise issues that are likely to come before the Court in the future,” but casting doubt on whether their actual
practice is consistent with this rule).
279 Kagan Hearings, supra note 195, at 84 (statement of Sen. Herbert H. Kohl).
280 531 U.S. 98, 111 (2000) (per curiam).
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is . . . one of some magnitude that might well come before the Court again.”281 She said that if
that were to occur, she would consider such a case “in an appropriate way.”282
The correctness or incorrectness of certain cases appears to be so well established—at least in the
minds of some nominees—that some Supreme Court candidates are willing to affirm or disavow
those cases without discussing how likely an issue is to recur.283 Such cases include not only
Marbury v. Madison, but also cases in the “anti-canon,” such as Dred Scott v. Sanford,284 Plessy v.
Ferguson,285 and Korematsu v. United States,286 that almost all modern lawyers agree were
wrongly decided.287 If a case is considered to be well established as part of either the canon or the
anti-canon, prevailing views about that case are unlikely to be challenged, indicating that even if
they do not expressly say so, nominees may be willing to comment on these settled cases because
challenges are unlikely to arise.288
Because nominees are more likely to discuss cases that are generally considered to be well-
established law, nominees’ willingness to embrace certain cases may vary over time. Questions
about the Supreme Court’s decision in Brown v. Board of Education, the 1954 case that
functionally overturned Plessy v. Ferguson and announced that “separate educational facilities”
for children of different races “are inherently unequal,”289 provide one example of how attitudes
may shift over time. In the 1955 confirmation hearing of Justice Harlan and the 1959 hearing for

281 Kagan Hearings, supra note 195, at 84 (statement of Elena Kagan). Cf. Alito Hearings, supra note 193, at 386
(statement of Samuel A. Alito, Jr.) (agreeing that the issue in Bush v. Gore probably would not “come before the
Supreme Court again,” but noting that “the Equal Protection ground that the majority relied on in Bush v. Gore does
involve principles that could come up in future elections and in future cases,” and refusing to say whether he believed
the Supreme Court should have taken the case on the grounds that he had not sufficiently studied it).
282 Kagan Hearings, supra note 195, at 84 (statement of Elena Kagan).
283 Cf., e.g., Barrett Hearings Day 2, supra note 236 (statement of Amy Coney Barrett) (discussing the term “super
precedent,” as used in “the scholarly literature,” as applying to only a “small handful of cases,” and saying Roe does
not qualify as a “super precedent because calls for its overruling have never ceased”).
284 60 U.S. 393, 403–04 (1857) (holding that slave descendants are not “citizens of a State” for constitutional purposes).
Nominees who have addressed Dred Scott have generally denounced it. See, e.g., Roberts Hearings, supra note 166, at
180, 241 (statement of John G. Roberts, Jr.); Ginsburg Hearings, supra note 14, at 126, 188, 210 (statements of Ruth
Bader Ginsburg); Thomas Hearings, supra note 198, at 464 (statement of Clarence Thomas); Kennedy Hearings, supra
note 212, at 175 (statement of Anthony M. Kennedy).
285 163 U.S. 537, 547, 551 (1896) (upholding law that provided “equal, but separate, accommodations for the white and
colored races”). By and large, nominees who have addressed Plessy have agreed that it was wrongly decided. See, e.g.,
Gorsuch Hearings, supra note 203, at 211, 335 (statements of Neil M. Gorsuch); Kagan Hearings, supra note 195, at
262 (statement of Elena Kagan); Sotomayor Hearings, supra note 198, at 117 (statement of Sonia Sotomayor); Alito
Hearings, supra note 193, at 463, 601 (statement of Samuel A. Alito, Jr.); Roberts Hearings, supra note 166, at 241
(statement of John G. Roberts, Jr.); Kennedy Hearings, supra note 212, at 149 (statement of Anthony M. Kennedy);
Rehnquist Hearings, supra note 198, at 167 (statement of William H. Rehnquist).
286 323 U.S. 214, 217–18 (1944) (upholding order excluding citizens of Japanese ancestry from certain areas of the
United States). Generally, nominees who have addressed Korematsu have said that it was wrongly decided or that they
would not follow it. See, e.g., Gorsuch Hearings, supra note 203, at 180, 226 (statements of Neil M. Gorsuch);
Sotomayor Hearings, supra note 198, at 117 (statement of Sonia Sotomayor); Alito Hearings, supra note 193, at 418
(statement of Samuel A. Alito, Jr.); Roberts Hearings, supra note 166, at 241 (statement of John G. Roberts, Jr.).
287 See, e.g., Richard A. Primus, Canon, Anti-Canon, and Judicial Dissent, 48 DUKE L.J. 243, 245 (1998).
288 See, e.g., Barrett Hearings Day 2, supra note 236 (statements of Sen. Lindsay Graham and Amy Coney Barrett)
(discussing the unlikelihood that the government would re-impose racial segregation in a way that would allow Brown
v. Board of Education to be revisited); Roberts Hearings, supra note 166, at 154–55, 241 (statements of John G.
Roberts, Jr.) (stating that he “would be surprised to see” a case involving the internment of a group of people based
solely on their nationality or ethnic or religious group, and later stating that “it’s hard for [him] to comprehend the
argument that [Korematsu] would be acceptable these days”).
289 347 U.S. 483, 495 (1954).
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Justice Potter Stewart, some Senators announced their disagreement with the Court’s decision and
attempted to discern whether these nominees agreed with the Court’s result or reasoning.290 The
nominees avoided giving their opinions on the case.291 Over the following decades, Senators
continued to hold up Brown as an example of improper judicial legislating, pushing nominees to
answer questions regarding the proper role of judges.292
As attitudes towards Brown shifted, so did its treatment in confirmation hearings.293 By Chief
Justice Rehnquist’s 1971 hearing for confirmation to the Court, he was willing to say that Brown
was “the established constitutional law of the land.”294 In response to a question about whether
Brown represented “lawmaking,” he stated that “if nine Justices . . . all unanimously decide that
the Constitution requires a particular result . . . . that is not lawmaking. It is interpretation of the
Constitution just as was contemplated by John Marshall in Marbury versus Madison.”295 In her
1981 hearing, then-Judge O’Connor was asked whether she would characterize Brown “as
judicial activism,” and if so, whether that was right.296 She responded by noting that “[s]ome have
characterized” Brown “as judicial activism,” but observed that the decision was unanimous and
stated that she assumed the Court had been “exercising its constitutional function to determine the
meaning . . . of the Constitution.”297 But she later declined to state whether she agreed with the
statement in Justice John Marshall Harlan’s298 dissenting opinion in Plessy characterizing the
Constitution as colorblind, noting that “litigation in the area of affirmative action is far from
resolved.”299 Since then, Supreme Court nominees have more readily endorsed Brown.300

290 COLLINS & RINGHAND, supra note 176, at 163–65.
291 Id. at 163–65.
292 Id. at 166–71.
293 Id. at 171–74.
294 Rehnquist Hearings, supra note 198, at 76 (statement of William H. Rehnquist).
295 Id. at 167 (statement of William H. Rehnquist). He was subsequently questioned about a memorandum he had
written while clerking for Justice Robert Jackson that stated that Plessy “was right and should be reaffirmed,” and said
that the memorandum did not represent his own views on the subject. See Texts of Rehnquist Letter to Senator Eastland
and Memo of 1952 on Rights Cases, N.Y. TIMES, Dec. 9, 1971, https://www.nytimes.com/1971/12/09/archives/texts-of-
rehnquist-letter-to-senator-eastland-and-memo-of-1952-on.html; Nomination of Justice William Hubbs Rehnquist To
Be Chief Justice of the United States: Hearings Before the S. Comm. on the Judiciary, 99th Cong. 223–24 (1986).
296 O’Connor Hearings, supra note 259, at 66 (statement of Sen. Joseph R. Biden, Jr.).
297 Id. at 66–67 (statements of Sandra Day O’Connor).
298 This was the first Justice John Marshall Harlan, the grandfather of the John Marshall Harlan who was confirmed to
the Court in 1955.
299 O’Connor Hearings, supra note 259, at 84 (statement of Sandra Day O’Connor).
300 Kavanaugh Hearings, supra note 200, at 180 (statement of Brett M. Kavanaugh) (describing Brown as “the single
greatest moment in Supreme Court history”); Gorsuch Hearings, supra note 203, at 335 (statements of Neil M.
Gorsuch) (describing Brown as a “seminal decision” and saying that it “vindicated . . . the correct original meaning . . .
of the Fourteenth Amendment, and is one of the shining moments of constitutional history of the U.S. Supreme
Court”); Kagan Hearings, supra note 195, at 262 (statement of Elena Kagan) (describing the decision as one of
“Thurgood Marshall’s . . . greatest accomplishment[s]”); Sotomayor Hearings, supra note 198, at 398–99 (statement of
Sonia Sotomayor) (describing Brown as one of the circumstances in which it was appropriate to overrule precedent);
Alito Hearings, supra note 193, at 462–63, 601 (statement of Samuel A. Alito, Jr.) (responding “certainly” to question
asking whether he supports the overruling of Plessy); Roberts Hearings, supra note 166, at 204 (statement of John G.
Roberts, Jr.) (describing Brown as “more consistent with the 14th Amendment and the original understanding of the
14th Amendment than Plessy v. Ferguson”); Ginsburg Hearings, supra note 14, at 312 (statements of Ruth Bader
Ginsburg) (listing Brown as one of the Court’s most important cases); Kennedy Hearings, supra note 212, at 149
(statement of Anthony M. Kennedy) (stating that Brown was “right when it was decided” and consistent with the 14th
Amendment). Note, however, that one Member stated that Judge Gorsuch was “averse to saying” that the Brown Court
came to the “right result.” Gorsuch Hearings, supra note 203, at 335 (statement of Sen. Richard Blumenthal). At least
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As mentioned, if a prior case is not considered settled law and if a nominee thinks issues from
that case are likely to recur, the nominee may be unwilling to discuss the case at all.301
Alternatively, a nominee may merely acknowledge the existence of the case.302 Even then-Judge
Scalia, who generally declined to express his views on cases,303 was willing to say that certain
cases decided by the Supreme Court were “an accepted part of current law.”304 As another
example, when Justice Kagan was pressed for her views on District of Columbia v. Heller, in
which the Supreme Court recognized an individual right to keep and carry arms,305 Justice Kagan
described the holding of the case and said that it was “settled law.”306 Questions have sometimes
arisen regarding when nominees are describing cases as opposed to expressing their normative
views about their substance.307 At times, nominees who are not willing to discuss specific cases
may be willing to discuss the general framework they would apply to analyze a given issue,
including principles taken from prior jurisprudence.308
At least one recent Supreme Court nominee was somewhat unwilling to express his views even
on cases he had previously discussed.309 As a lower court judge, Justice Kavanaugh had seemed
to criticize two Supreme Court cases interpreting the Constitution’s Appointments Clause:
Humphrey’s Executor and Morrison v. Olson.310 Further, he had stated at a public event that

two recent nominees to the lower federal courts, Wendy Vitter and Andrew Oldham, have refused to say whether they
believed Brown was correctly decided. See Ariane de Vogue, Brown v. Board Takes Center Stage at Hearing for
Trump’s Judicial Nominees, CNN (May 17, 2018 5:59 PM), https://www.cnn.com/2018/05/17/politics/judicial-
nominees-senate-committee-brown-v-board-of-education/index.html.
301 See, e.g., Roberts Hearings, supra note 166, at 300–01 (statement of John G. Roberts, Jr.).
302 For example, in discussing Roe v. Wade, many nominees have only been willing to say that it is precedent of the
Supreme Court or to describe the holdings of the case. See, e.g., Gorsuch Hearings, supra note 203, at 77, 280
(statements of Neil M. Gorsuch); Kagan Hearings, supra note 195, at 96, 262 (statements of Elena Kagan); Sotomayor
Hearings, supra note 198, at 82 (statement of Sonia Sotomayor); Alito Hearings, supra note 193, at 401, 454–55
(statements of Samuel A. Alito, Jr.); Roberts Hearings, supra note 166, at 145 (statement of John G. Roberts, Jr.). Cf.
Scalia Hearings, supra note 15, at 37 (statement of Antonin G. Scalia) (declining to respond to question asking whether
he would overrule Roe v. Wade).
303 See Scalia Hearings, supra note 15, at 85–87.
304 Id. at 87 (statement of Antonin G. Scalia) (discussing incorporation doctrine cases).
305 554 U.S. 570, 592 (2008).
306 Kagan Hearings, supra note 195, at 247 (statement of Elena Kagan). See also id. at 284 (declining to state whether
she believed there was a fundamental right to bear arms but saying, “I accept Heller”) (statement of Elena Kagan).
307 See, e.g., Nomination of the Honorable Amy Coney Barrett to be an Associate Justice of the Supreme Court of the
United States: Hearing Before the S. Comm. on the Judiciary, 116th Cong. (Oct. 14, 2020),
https://www.judiciary.senate.gov/meetings/nomination-of-the-honorable-amy-coney-barrett-to-be-an-associate-justice-
of-the-supreme-court-of-the-united-states-day-3 [hereinafter Barrett Hearings Day 3] (statement of Amy Coney
Barrett) (denying assertion that she had departed from her prior interpretations of the Ginsburg rule by giving a legal
opinion on “the deciding question” in a pending case).
308 See, e.g., Kagan Hearings, supra note 195, at 115–16 (statement of Elena Kagan) (describing considerations under
current law in deciding “what level of constitutional scrutiny to apply to gun regulations”); Roberts Hearings, supra
note 166, at 242–43 (statement of John G. Roberts, Jr.) (describing approach to analyzing constitutionality of
presidential actions); Ginsburg Hearings, supra note 14, at 182 (statement of Ruth Bader Ginsburg) (describing
precedent governing First Amendment rights in the context of the military).
309 See also supra “Nominee’s Prior Statements.”
310 See PHH Corp. v. CFPB, 881 F.3d 75, 176 n.3 (D.C. Cir. 2018) (en banc) (Kavanaugh, J., dissenting); In re Aiken
Cty., 645 F.3d 428, 446 (D.C. Cir. 2011) (Kavanaugh, J., concurring); Free Enter. Fund v. Pub. Co. Acct. Oversight
Bd., 537 F.3d 667, 696 (D.C. Cir. 2008) (Kavanaugh, J., dissenting). For additional discussion of his position on this
issue, see CRS Report R45293, Judge Brett M. Kavanaugh: His Jurisprudence and Potential Impact on the Supreme
Court, coordinated by Andrew Nolan.
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Morrison deserved to be overturned.311 However, in response to Senator questioning, he declined
to say whether he would overrule Morrison, and argued that his prior opinions had “not cast
doubt on” Humphrey’s Executor.312 He described the latter case as “an important precedent of the
Supreme Court,” but declined to describe the case as “settled” or “well-decided.”313
Judicial Procedure
Nominees are sometimes asked questions relating to judicial procedure, and are often willing to
speak generally on these matters.314 To take one recurring issue, Supreme Court nominees will
generally offer their views on whether they support filming Supreme Court proceedings.315 Then-
Judge Roberts and then-Judge Scalia both responded to questions regarding whether they
believed the Supreme Court was overworked.316
Supreme Court candidates have also discussed the issues of judicial misconduct. In this vein, a
number of nominees have been questioned about the process to impeach judges.317 For example,
Justice Kennedy, who had previously opposed legislation proposing reforms to the impeachment
process, explained his position during his hearing.318 Then-Judge O’Connor spoke about her
experience as a state court judge subject to different processes.319 Moreover, then-Judge Scalia
stated that he believed the impeachment process was appropriately a “cumbersome process.”320
Conversely, then-Judge Ginsburg largely demurred, stating that she believed “there may be a real
conflict of interest, possibility of bias and prejudice on my part” in responding to questions about
the impeachment process.321
Senators have sometimes asked Supreme Court nominees whether they would recuse themselves
under certain circumstances.322 Then-Solicitor General Kagan committed to recusing herself from
any case in which she had been “counsel of record” and suggested that she might recuse herself

311 Brett M. Kavanaugh, Circuit Judge, U.S. Court of Appeals for the D.C. Cir., The Court: Power, Policy, and Self-
Government (interview at the American Enterprise Institute), at 50:43 (Mar. 31, 2016), http://www.aei.org/events/the-
court-power-policy-and-self-government.
312 Kavanaugh Hearings, supra note 200, at 225 (statement of Brett M. Kavanaugh).
313 Id. at 223–24. By comparison, when asked whether Marbury v. Madison was “well-decided,” he responded, “Of
course.” Id. at 224 (statements of Sen. Chris Coons and Brett M. Kavanaugh).
314 See generally, e.g., O’Connor Hearings, supra note 259, at 140 (statement of Sandra Day O’Connor) (suggesting
that “it is appropriate for judges to be concerned and, indeed, to express themselves in matters relating to the
administration of justice in the courts, and as to matters which would improve that administration of justice in some
fashion,” even while they should not speak out about other policy issues).
315 See, e.g., Kagan Hearings, supra note 195, at 83 (statement of Elena Kagan); Sotomayor Hearings, supra note 198,
at 83 (statement of Sonia Sotomayor); Alito Hearings, supra note 193, at 480 (statement of Samuel A. Alito, Jr.);
Roberts Hearings, supra note 166, at 239–40 (statement of John G. Roberts, Jr.); Ginsburg Hearings, supra note 14, at
198–99, 262 (statements of Ruth Bader Ginsburg). Cf. Barrett Hearings Day 3, supra note 307 (statement of Amy
Coney Barrett) (saying she would “keep an open mind about allowing cameras in the Supreme Court”); O’Connor
Hearings, supra note 259, at 143 (statement of Sandra Day O’Connor) (discussing the demands of a free press versus
the importance of affording a fair trial).
316 Roberts Hearings, supra note 166, at 309; Scalia Hearings, supra note 15, at 60.
317 Ginsburg Hearings, supra note 14, at 327–29; Kennedy Hearings, supra note 212, at 215–17; Scalia Hearings,
supra note 15, at 99–100; O’Connor Hearings, supra note 259, at 98–100.
318 Kennedy Hearings, supra note 212, at 216 (statement of Anthony M. Kennedy).
319 O’Connor Hearings, supra note 259, at 99–100 (statements of Sandra Day O’Connor).
320 Scalia Hearings, supra note 15, at 99–100 (statements of Antonin G. Scalia).
321 Ginsburg Hearings, supra note 14, at 328 (statement of Ruth Bader Ginsburg).
322 See, e.g., O’Connor Hearings, supra note 259, at 138–39.
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“in any case in which [she had] played any kind of substantial role in the process.”323 Similarly,
then-Judge Sotomayor said that she would recuse herself from consideration of any decisions she
had authored as a federal appellate judge.324 In his hearing, then-Judge Roberts stated that the fact
that he had previously taken one position on an issue as an advocate would not require him to
recuse himself in any future cases presenting the same issue.325 At other times, nominees have
discussed cases in which they had previously recused themselves as lower court judges326 or
spoken more generally about their views on recusal.327
Conclusion
In sum, the applicable codes of judicial conduct and historical practice provide some guidance
regarding what sorts of questions a nominee may permissibly answer during his confirmation
hearing. Scholars,328 nominees,329 and some Members of Congress330 generally agree that under
ethical rules as well as norms like the Ginsburg Rule a nominee should refrain from pledging to
uphold or overturn particular precedents or to decide cases in certain ways. Nominees likely need
to avoid making statements that could mandate their recusal from future cases under the federal
judicial disqualification statute or under applicable canons of judicial ethics.331 Beyond that, the
boundaries between permissible and impermissible responses are murky—and still contested
during confirmation hearings. Historical practice suggests that nominees will avoid clear
commitments to resolve future cases in certain ways and, in many circumstances, will avoid even

323 Kagan Hearings, supra note 195, at 64 (statement of Elena Kagan).
324 Sotomayor Hearings, supra note 198, at 113, 118–19 (statement of Sonia Sotomayor).
325 Roberts Hearings, supra note 166, at 307–08 (statement of John G. Roberts, Jr.). See also Sotomayor Hearings,
supra note 198, at 394 (statement of Sonia Sotomayor) (stating that she would not recuse herself in any cases
presenting the question whether the right of an individual to bear arms was fundamental, notwithstanding her previous
statements regarding the issue).
326 See, e.g., Gorsuch Hearings, supra note 203, at 238 (statement of Neil M. Gorsuch); Alito Hearings, supra note 193,
at 337–40, 492–94 (statement of Samuel A. Alito, Jr.); Ginsburg Hearings, supra note 14, at 156–58 (statement of Ruth
Bader Ginsburg); Scalia Hearings, supra note 15, at 72 (statement of Antonin G. Scalia).
327 See, e.g., Kagan Hearings, supra note 195, at 119 (statement of Elena Kagan); Kennedy Hearings, supra note 212,
at 217 (statement of Anthony M. Kennedy); Scalia Hearings, supra note 15, at 44 (statement of Antonin G. Scalia).
328 Amar, supra note 20 (concluding that “[e]xplicit or implicit promises” to rule in a certain way in future cases
“would . . . compromise judicial independence and due process of law”); Lubet, Confirmation Ethics, supra note 19, at
235 (“[I]t may seem to future litigants that a justice is bound to a predetermined outcome as a consequence of
commitments apparently made during confirmation. This appearance of partiality should be avoided in its own right.”
(footnote omitted)).
329 See supra note 198.
330 See, e.g., Gorsuch Hearings, supra note 203, at 55–56 (statement of Sen. John Kennedy); id. at 177 (statement of
Sen. Ben Sasse); Sotomayor Hearings, supra note 198, at 574 (statement of Sen. Sheldon Whitehouse); Alito Hearings,
supra note 193, at 13 (statement of Sen. Charles E. Grassley); Roberts Hearings, supra note 166, at 20 (statement of
Sen. Jon Kyl); Ginsburg Hearings, supra note 14, at 265 (statement of Sen. Orrin G. Hatch). Cf., e.g., Kennedy
Hearings, supra note 212, at 25 (statement of Sen. Joseph R. Biden, Jr., Chairman, S. Comm. on the Judiciary) (noting
that no “promises” would “be sought or secured” at the confirmation hearing, but stating that he expected “that within
reasonable limits of propriety, you will respect the Senate’s constitutional role of advice and consent, by being as
forthcoming and responsive as possible”).
331 See supra “Disqualification.”
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giving “hints” about how they may view potential disputes.332 General questions relating to the
nominee’s jurisprudential philosophy are more likely to elicit forthcoming responses than specific
questions about how the nominee intends to rule in particular categories of cases. Nominees have
been more likely to speak about particular legal issues if they have previously commented on that
issue, such as in judicial opinions or extra-judicial statements.333
There are few available remedies when a nominee refuses to answer a particular question.
Although a Senator may vote against a nominee who is not sufficiently forthcoming,334 as a
matter of historical practice the Senate has rarely viewed lack of candor during confirmation
hearings as disqualifying,335 and it does not appear that the Senate has ever rejected a Supreme
Court nominee solely on the basis of evasiveness.336

Author Information

Valerie C. Brannon
Joanna R. Lampe
Legislative Attorney
Legislative Attorney

Acknowledgments
Former Legislative Attorney Kevin M. Lewis was an author of a prior version of this report. Inquiries on
this topic can be submitted to the listed authors.

332 As discussed, Justice Ginsburg famously stated that she would give “no hints, no forecasts, no previews,” in
declining to respond to a question that she thought presented “a burning question virtually certain to come before the
Court.” Ginsburg Hearings, supra note 14, at 323 (statement of Ruth Bader Ginsburg). Accord, e.g., Gorsuch
Hearings, supra note 203, at 77 (statement of Neil M. Gorsuch); Kagan Hearings, supra note 195, at 64 (statement of
Elena Kagan); Alito Hearings, supra note 193, at 627 (statement of Samuel A. Alito, Jr.); Roberts Hearings, supra note
166, at 188 (statement of John G. Roberts, Jr.).
333 See supra “Nominee’s Prior Statements.”
334 See Lubet, Confirmation Ethics, supra note 19, at 236 (observing that a nominee’s “decision to refrain from
answering” a question at a confirmation hearing “carries with it the possibility of prompting a negative vote on
confirmation”).
335 See, e.g., Ringhand, supra note 278, at 351 (noting that Justice Scalia “breezed through [his] confirmation hearings
and was approved by the Senate by a 98 to 0 vote” despite answering “very few difficult or ‘political’ questions”).
336 See, e.g., Jeff Bliech, Aimee Feinberg, Michelle Friedland & Dan Powell, Advice and Consent on Supreme Court
Justices, 32 S.F. ATT’Y 50 (2006).
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Questioning Judicial Nominees: Legal Limitations and Practice

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