The Next Justice: Repairing the Supreme Court Appointments Process

On the first day of the Roberts hearings, Senators John Kyl of Arizona and Charles Schumer of New York disagreed sharply about the Senate's role. Kyl said that the Senate had no business asking nominees about their political ideology. Schumer, by contrast, said that such questions were the heart of the matter. On one point, though, Kyl and Schumer agreed. They both believed that the Senate had the right, and indeed the obligation, to ask about the nominee's judicial philosophy. “Our proper role this week is to determine whether Judge Roberts has the character, the legal ability and the judicial philosophy to fulfill [his] responsibilit[ies],” declared Kyl.¹ “You need to answer questions fully so we can ascertain your judicial philosophy,” Schumer told Roberts.²

Judicial philosophy is the Holy Grail of Senate confirmation hearings. The concept captures the idea that judging is more intellectually demanding than calling balls or strikes, but that it is also different from, and more technically sophisticated than, taking political positions. Everyone agrees that it is appropriate for the Senate to ask nominees about their judicial philosophy. Unfortunately, senators

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