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It Is Simply Not True That Judge Alito Cannot Comment On Issues Which Might Come Before The Court

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It just now happened once again, as I was watching Sen. Brownback questioning Judge Alito in the confirmation hearings now underway. Brownback said, and Alito agreed, "I realize you cannot comment on issues which might come before the Court." And thus we are denied the right to know what Judge Alito truly thinks regarding the major Constitutional issues facing our country. And the Senate is expected to confirm him, not on the basis of "Informed Consent," but on the basis of guessing what he really understands the Law to be. Unbelievable! Simply unbelievable! And untrue, in my opinion, as I will show.

If this is really true - that a Supreme Court nominee cannot discuss issues which may come before the Court - then please somebody, tell me why and show me the proof. I cannot find any reason why, except that everybody seems to have accepted it as truth, without good reason. Just because Ruth Bader Ginzberg made it her own personal rule during her confirmation, this doesn't mean it is binding on anybody else. It may have become the custom, but this silence is not required and should not be continued.

I can understand not discussing specific real-life actual cases - naming a specific real-life plaintiff and defendant - on the grounds that such discussion might suggest that the judge has already made up his mind in the case, without considering all the evidence, etc. And a judge's stated opinions on that specific case might unfairly influence the final outcome of the cases, perhaps by swaying the jury, or in some other way. So the rule about not discussing specific cases which are before the Court, or specific cases which might come before the Court, is a good rule.

But even this rule against commenting on specific cases has an exception which would apply to Supreme Court nominees. Yes, it is true that "A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control." But there is a specific exception which would apply here, namely: "This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education." A Senate confirmation hearing would certainly be "a public statement made in the course of the judge's official duties." And thus this rule would not apply to a Supreme Court nominee in a Senate confirmation hearing.

So the Ethical Canons seem to have been misinterpreted in this instance. Read them for yourself, below.

Source: Canon 3-A-6 of the "Code Of Conduct For United States Judges," located at A similar restriction, with a similar exception, is found in Canon 3-9 of the American Bar Association's "Model Code Of Judicial Conduct," located at

But I'm not even talking about specific real-life cases, I'm talking about issues and hypothetical cases. And I can find no legitimate restriction on discussing issues or hypothetical cases. In fact, "hypotheticals" are a normal part of Supreme Court practice, where the Justices are constantly throwing hypothetical cases to the lawyers practicing before them.

So why do they keep on making these statements like, "I realize you cannot comment on issues that might come before the Court?" What is their basis for saying that? My view is that they certainly can comment on issues which might come before the Supreme Court, and in fact are morally and legally obligated to do so, in order to provided "informed Consent" to the Senate.

First, let me observe that it is almost always in the interest of any nominee (and his supporters) to be able to hide behind this claim, because it neutralizes any opposition which might arise on account of on his straight answers to the questions. For instance, if Judge Alito were to say clearly, which he has so far refused to do, that he still believes Roe v. Wade was improperly decided, then that would solidify his opposition among those who do not want Roe v. Wade to be overturned. So the nominees and their supporters have a self-serving interest in saying they cannot discuss these issues.

So now let's turn to the essential question: Where did we ever get the idea that a Supreme Court nominee cannot comment on issues which might come before him in the future? I do not find it in the Constitution, or in any law, or in any Canon of Judicial Ethics. Can you?

The usual explanations for this practice go something like these two, as stated during the Roberts confirmation hearing, by two Republican senators:

1. "First, what judges do limits what judicial nominees may discuss. Judges must be impartial and independent. Their very oath of office requires impartiality and the canons of judicial ethics prohibit judges and judicial nominees from making commitments regarding issues that may come before them."Source: Sen. Hatch, in his opening statement at the Roberts hearings, as transcribed at

2. The American Bar Association Model Code of Judicial Conduct dictates, and I quote, "that a judge or candidate for election or appointment to judicial office shall not with respect to cases, controversies or issues that are likely to come before the court make pledges, promises or commitments that are inconsistent with the impartial performance of the adjudicative duties of the office." Source: Sen. Kyl in his opening remarks at the Roberts hearings, as transcribed at

Please note that these explanations say that commitments are prohibited and impartiality is required. That seems reasonable to me, and it seems to be consistent with both the "Code Of Conduct For United States Judges," and with the "American Bar Association Model Code of Judicial Conduct." (Links shown above.)

I am not seeking a commitment of any sort, just an explanation of his legal reasoning on the important Constitutional issues facing our country. In general, does he believe that the Constitution guarantees the right to abortion? Why or why not? In general, does he believe that the President has sole authority over the executive departments, so that Congress cannot impose any instructions or limitations on these departments? Why or why not? In general, does he believe that the President has total Constitutional authority during "time of war," (whatever that) to do anything he wants to do, so long as it somehow relates to national defense? Why or why not? Does he believe that the President is entitled to disregard laws which he considers to be unconstitutional, even before the Supreme Court has declared the law to be unconstitutional?

And providing this information does not make him less "impartial," merely more truthful. There is no partiality about telling the truth. Partiality occurs when you apply the law differently to different people, favoring one over the other. If he applied the law differently to President Bush than to some other President, that would be partiality. But providing an opinion on what the law is, before it is applied in a specific case, is not being partial; it's just explaining what the law is, as he sees it. His impartiality would not be compromised by giving us a straight answer to this important question.

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Rev. Bill McGinnis is an Internet Christian minister, writer and publisher. He is Director of, a small private think tank in Alexandria, Virginia, and all of its related websites, including (more...)
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