Questioning Judicial Nominees: Legal Limitations and Practice [Updated March 17, 2022]   [open pdf - 1MB]

From the Summary: "The U.S. Constitution vests the Senate with the role of providing 'advice' and granting or 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 holds a hearing at which Senators question the 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. [...] 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."

Report Number:
CRS Report for Congress, R45300
Public Domain
Retrieved From:
Congressional Research Service: https://crsreports.congress.gov/
Media Type:
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