Presidential Commission on the Supreme Court of the United States
II. Scope of Questioning: While it is not feasible to establish a Senate or Committee Rule defining the allowable scope of questioning, the appropriate norm for questioning SCOTUS nominees – a “standard of responsiveness” – should be “philosophical particularity,” as opposed to “pinpoint specificity seeking pledges or commitments” or the “extreme reluctance” taken by more recent nominees. Procedurally, no Member of the Committee, including the Chair or Ranking Member, should be allowed to instruct a nominee not to answer a question. A Member or Members may dislike the questions posed by a colleague, but it is up to the nominee to decide whether to answer.
| a) | To make an informed decision and fulfill their constitutional obligation and duty to exercise “advice and consent” on judicial nominations, Senators must understand the nominee’s judicial philosophy and views on core constitutional principles. | |
| b) | The so-called “Ginsburg Rule” cited by recent nominees is neither a rule nor an appropriate tactic to utilize to deflect substantively appropriate questions. Indeed, then Judge Ginsburg did not always follow it during her hearings. | |
| c) | When presidents campaign on promises regarding the justices they will appoint to the Supreme Court, criticizing past rulings and individual Justices – as they increasingly do – the Senate can hardly sit idly by during the hearings and not probe the judicial philosophy of nominees selected to fulfill those promises and answer those critiques. Indeed, the imperative to question nominees on judicial philosophy is even greater under such circumstances. |
III. The Role of the FBI: Processes pertaining to the FBI’s investigation of SCOTUS nominees should be further clarified and memorialized in a Memorandum of Understanding that updates and replaces the 2009 MOU executed by President Obama’s White House Counsel and the then Senate Judiciary Committee Chair and Ranking Member. This MOU should be adopted at the beginning of a new Congress so that it is done outside the context of any particular nomination, and should:
| a) | Underscore and memorialize the independence of the FBI, stating specifically that the FBI’s client is the American people. It is important to make clear, formally, that when the FBI conducts its investigations neither the White House Counsel nor the Senate Judiciary Committee majority or minority are the clients. | |
| b) | Create communication protocols governing the FBI’s dialogue with the White House and the Chair/Ranking Member of the Judiciary Committee so that each of those three parties receives information simultaneously when the FBI has determined that a matter warrants investigation. It is necessary to take steps ensuring neither receives preferential treatment over the other. | |
| c) | Spell out the parameters of the FBI’s role in conducting the background investigation before the hearings begin and any subsequent investigations that arise once the hearings have started. Specifically, and working with FBI leadership, the MOU should require |
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