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In a recent post on Mirror of Justice, Robert George graciously responds to an earlier post of mine regarding the views of senators on questioning judicial nominees.  He writes that given my description, "I'm glad to know that Senator Charles Schumer agrees with me that questions about issues such as abortion, marriage, and the role of religion in American public life are appropriate; I'm disappointed to learn that Senator John Cornyn believes that they are not."  

Normally, I'd rest on my laurels right there.  More than that: having gotten Robert George to agree with Charles Schumer and disagree with John Cornyn, I'd be battening down the hatches and saying my prayers; surely this is a sign that the Last Days are approaching.  But George goes on, quite reasonably, to say:

I do have one question, however, about Professor Horwitz's account of Senator Cornyn's view.  He reports that "Cornyn has made quite clear that he believes that a nominee's personal views about abortion and other issues are irrelevant to her fitness for the bench" (emphasis added).  Stated just that way, I would not necessarily disagree with Cornyn.  It depends on what one means by "personal" views.  I don't think the American public necessarily needs to know whether Elena Kagan or any other nominee believes that abortion is right or wrong, just or unjust; nor do we need to know whether she believes that this or that sexual practice or form of sexual partnership is morally good or bad; nor do we need to know what her religious convictions are.  In that sense, her personal views may indeed by irrelevant.  What we need to know in order properly to evaluate a nominee's suitability is whether he or she believes that some provision of the Constitution, or the Constitution somehow taken as a whole, may legitimately be interpreted as settling the question of abortion and removing it from the domain of democratic deliberation.  Ditto for marriage; ditto for, e.g., including "under God" in the Pledge of Allegiance.  (For that matter, ditto for the private possession of handguns, burning the American flag, and issues such as those at stake in theCitizens United decision.)  By answering questions about these issues---candidly and fully---a nominee will let us know where he or she stands on the central matters at stake:  namely the sources of constitutional meaning and the role of the courts in our system of constitutional government.  It is on the basis of the nominee's stands on these matters, considered together with intellectual attainment, integrity, and temperament, that Senators should, in my opinion, cast there votes for or against confirmation.

That's a fair question and deserves a fair response.  On my reading of Cornyn's writing on the subject, the answer is somewhat unclear.  Cornyn does say that a nominee's personal views on abortion (and other subjects) are irrelevant, and George doesn't disagree with that, as I understand him.  Cornyn goes on to complain, however, that Democrats have insisted that nominees "swear allegiance to certain views with regard to abortion."  In context, this seems to mean not just personal views, but legal views.  He adds that "Senators should consider judicial nominees on the basis of their qualifications and commitment to applying the law as it is written -- regardless of their personal views on abortion or Roe."  

The fact that Cornyn brings in both Roe v. Wade and "the law as it is written" complicates matters in both directions.  On the one hand, a personal view on Roe is distinct from a personal view on abortion; it's arguably more a jurisprudential view than a purely moral and personal one.  Cornyn seems to suggest that questions or votes along these lines are off the table -- that whether one thinks Roe was wrongly decided (at the time, he was thinking about Republican nominees) or rightly decided is not a proper basis for a yes or no vote.  On the other hand, what are we to make of the phrase "the law as it is written?"  If Kagan says she is committed to upholding the precedents of the Court, does that make her a sound nominee under Cornyn's criteria because she is committed to applying the law as it is written?  Or is the question whether she is willing to strike down precedents that don't accord with the law as it is written in the Constitution itself -- which, on Cornyn's view, presumably doesn't include a right to abortion?  (Steve Shiffrin raises similar questions at MoJ.)  

George might conclude that the phrase is absolutely clear and favors the latter interpretation.  My own view is not that it favors the former reading, but rather that the final meaning of Cornyn's phrase is just not clear, and suggests the problem with imprecise phrases like "the law as it is written."  My best and most charitable interpretation of Cornyn's remarks is that it may leave him room to ask some of the questions that George thinks ought to be asked, but that if he applies his principles in a way that is consistent with his earlier discussion and with his treatment of some other nominees, he may be more constrained in what he can ask than George would wish.  Certainly Kagan can, under Cornyn's approach, be asked general questions about "the sources of constitutional meaning."  She ought to be able to satisfy him at a prima facie level (although he is free to believe she is being dishonest) that she shares his commitment to applying the law as it is written.  But as I understand Cornyn's views, more probing questions that go directly to how she would rule on issues involving abortion, gun laws, and campaign finance would be prohibited.  I don't know whether this will satisfy George or not. 

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