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September 24, 2005

An Argument That Has No Clothes

By Andrew Bard Schmookler

I'm talking about the notion -maintained by both parties when it suits their purpose-that it would be inappropriate for a judicial nominee to answer substantive questions about his or her views on important constitutional issues.


Hasn't anyone noticed that this argument has no clothes?

I'm talking about the notion -maintained by both parties when it suits their purpose-that it would be inappropriate for a judicial nominee to answer substantive questions about his or her views on important constitutional issues.

It would compromise the integrity of the judicial process -so this argument goes-for a nominee to pronounce in advance on issues that may well come before the court in the future.

What nonsense!

Set aside the question of whether it's OK for these nominees to have opinions, so long as they don't express them. Or whether we're supposed to believe that a clever and experienced attorney, such as our most recent self-censoring nominee, John Roberts, has somehow managed to engage the basic issues of his field on behalf of his clients without ever forming an opinion of his own.

What's patently ridiculous, rather, is the argument that a judicial nominee would disqualify himself from rendering unbiased decisions in the future because he expressed his opinions on such issues now. When John Roberts takes a seat on the Court, he will be surrounded by eight other justices who have been writing opinions on countless issues for years. If John Roberts could reasonably be accused of prejudging potential future cases by articulating candidly his views on past cases and issues, then --by that same logic-- so would all these sitting judges.

By that logic, those justices that have written opinions in cases involving the right to privacy, or the interstate commerce clause, or the separation of church and state, would have to disqualify themselves from any future cases involving those issues.

But there is no logic.

And just as we have no need to dispose of judges as soon as they've expressed opinions from the bench, so there is no substance whatever to the claim that judicial nominees have any ethical obligation to decline to answer substantive questions -not about hypothetical cases, but about cases that have already been decided by the Court.

What reason can there be why Judge Roberts would be obliged not to answer -indeed why he would have the "right" not to answer-a question like, "In what ways do you agree with Justice Scalia's dissent in Lawrence v. Texas, and in what ways do you agree with the majority opinion?" His future colleagues, after all, have all answered that question most publicly when the opinion came down.

It's not surprising that there's no logic behind this supposed obligation of the nominee to demur, because the argument was never an honest one. Everyone knows it's really a mere fig leaf over the real purpose of such silence on matters of substance: to avoid giving the confirmation process any actual substance that might lead to controversy and threaten the nominee 's smooth glide toward confirmation. Invisible targets are harder to shoot down.

But what is surprising is that this empty argument is allowed to endure. How can so blatantly bogus an argument be allowed to parade in public, year after year, when it so clearly has no clothes?

America deserves better-no matter what the party of the president making the nomination. We deserve to hear substantive discussion of the vital constitutional issues whose resolution by the Court does so much to define what kind of country we are and will become.

We've long since seen that a judge's competence and character are not all we need to know, for their values and philosophies pretty predictably determine their votes. But in this country --where sellers of houses and dealers who sell cars are required by law to disclose all pertinent information-- when it comes to those whose judgments will shape our nation we're expected to buy a pig in a poke.

It's nonsense. It's unacceptable. And I'd even venture to say that it violates the spirit of our Constitution, for how can the Senate meaningfully give its "consent" when such a phony argument is allowed to keep that consent from being informed?

Andrew Bard Schmookler is the author of such books as The Parable of the Tribes: The Problem of Power in Social Evolution (SUNY Press) and Debating the Good Society: A Quest to Bridge America's Moral Divide (M.I.T. Press). He also conducts regular talk-radio conversations in both red and blue states. His website on the moral crisis besetting America today will debut on the web in the coming weeks. Schmookler can be reached at

Submitter: Rob Kall

Submitters Bio:

Rob Kall is an award winning journalist, inventor, software architect,
connector and visionary. His work and his writing have been featured in the New York Times, the Wall Street Journal, CNN, ABC, the HuffingtonPost, Success, Discover and other media. 

Check out his platform at

He is the author of The Bottom-up Revolution; Mastering the Emerging World of Connectivity  

He's given talks and workshops to Fortune
500 execs and national medical and psychological organizations, and pioneered
first-of-their-kind conferences in Positive Psychology, Brain Science and
Story. He hosts some of the world's smartest, most interesting and powerful
people on his Bottom Up Radio Show,
and founded and publishes one of the top Google- ranked progressive news and
opinion sites,

more detailed bio: 

Rob Kall has spent his adult life as an awakener and empowerer-- first in the field of biofeedback, inventing products, developing software and a music recording label, MuPsych, within the company he founded in 1978-- Futurehealth, and founding, organizing and running 3 conferences: Winter Brain, on Neurofeedback and consciousness, Optimal Functioning and Positive Psychology (a pioneer in the field of Positive Psychology, first presenting workshops on it in 1985) and Storycon Summit Meeting on the Art Science and Application of Story-- each the first of their kind.  Then, when he found the process of raising people's consciousness and empowering them to take more control of their lives  one person at a time was too slow, he founded which has been the top search result on Google for the terms liberal news and progressive opinion for several years. Rob began his Bottom-up Radio show, broadcast on WNJC 1360 AM to Metro Philly, also available on iTunes, covering the transition of our culture, business and world from predominantly Top-down (hierarchical, centralized, authoritarian, patriarchal, big)  to bottom-up (egalitarian, local, interdependent, grassroots, archetypal feminine and small.) Recent long-term projects include a book, Bottom-up-- The Connection Revolution, debillionairizing the planet and the Psychopathy Defense and Optimization Project. 

Rob Kall Wikipedia Page

Rob Kall's Bottom Up Radio Show: Over 400 podcasts are archived for downloading here, or can be accessed from iTunes. Or check out my Youtube Channel

Rob Kall/OpEdNews Bottom Up YouTube video channel

Rob was published regularly on the for several years.

Rob is, with the first media winner of the Pillar Award for supporting Whistleblowers and the first amendment.

To learn more about Rob and, check out A Voice For Truth - ROB KALL | OM Times Magazine and this article. 

For Rob's work in non-political realms mostly before 2000, see his C.V..  and here's an article on the Storycon Summit Meeting he founded and organized for eight years. 

Press coverage in the Wall Street Journal: Party's Left Pushes for a Seat at the Table

Talk Nation Radio interview by David Swanson:  Rob   Kall  on Bottom-Up Governance June, 2017

Here is a one hour radio interview where Rob was a guest- on Envision This, and here is the transcript. 

To watch Rob having a lively conversation with John Conyers, then Chair of the House Judiciary committee, click hereWatch Rob speaking on Bottom up economics at the Occupy G8 Economic Summit, here.

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