Page:EO 14023 Commission Final Report.pdf/263

 1973 and had the Roe factual record before you, how would you have approached the case,” distinguishing that question from a precise question about how the nominee would have voted.

Approximately 15 interviewees – both Democrats and Republicans – support questions about the “general philosophy of judging.” They believe it is appropriate to ask questions about what nominees have written but oppose questions regarding how nominees would have ruled in specific past cases decided by the Court. For nominees who are or have previously been judges, these interviewees also support asking them about their reasoning in cases they have decided.

Several Republican interviewees referred approvingly to the so-called “Ginsburg Rule,” noting that should be the model for all future nominees.

One issue that arose during my research was whether to allow each Member of the Judiciary Committee to submit a defined number of written questions to the nominee before the hearings commence, with answers due before the nominee appears in person. The argument in favor of such an approach is that the nominee’s testimony would then follow an enhanced record. The problem with such an approach is that if history is any guide, the answers are likely to be written by White House Counsel lawyers, Department of Justice lawyers, outside lawyers (such as former law clerks) supporting the nominee or some combination thereof. While rules could require the nominee to attest to the accuracy of the answers and the fact that they reflect the nominee’s actual views, it would be difficult, if not impossible, to police their actual preparation.

One GOP interviewee proposed limiting the questioning of nominees in open session to one round, no longer than 30 minutes, with the remainder of the questioning occurred in closed session to “produce less grandstanding.”



I offer the following recommendations to the Commission.

By Standing Rule of the Senate or Rule of Procedure of the Senate Judiciary Committee, the following time frames and procedures should be adopted and implemented: