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Supreme Court Nominations: Is There A Better Way?

Publication Date: 
July 03, 2010
National Journal
Kirk Victor

Lecturer Tom Goldstein is quoted on how to prevent Supreme Court nominees from circumscribing questions during the confirmation process:

Long before he became exasperated by Supreme Court nominee Elena Kagan dodging his pointed questions, Sen. Arlen Specter, D-Pa., had teed up a surefire way for the Senate to improve the process for considering judicial nominations. The prickly Pennsylvanian said that the Senate should reject those hoping to sit on the nation's highest court if they are not forthright about their judicial philosophy. Nominees would have to be more responsive, he figured, if they knew they might otherwise get shot down.

"In my judgment, the Senate should resist, if not refuse to confirm, Supreme Court nominees who refuse to answer questions on fundamental issues," Specter wrote in his 2000 autobiography, Passion for Truth. "Senators should not have to gamble or guess about a candidate's philosophy but should be able to judge on the basis of the candidate's expressed views."


Tom Goldstein, co-creator of Scotus blog, a widely read site that focuses on the Supreme Court, agreed. "While senators have their own distinct role and should ask some questions, if you really want answers, you need to put it in the hands of a professional. So I do think that that would help, and help a lot, actually."

"The nominees have been preparing for this for months, and they are highly trained lawyers. You can't do this by asking a question; you have to ask five questions on a topic," Goldstein added. "Having an outside counsel who prepares exclusively for the hearing would make it easier to elicit information--or more difficult for the nominee to duck."