As the Senate begins hearings on the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court, Democrats are hoping they can get Barrett to express an opinion on health care, particularly her view of Affordable Care Act, birth control and abortion. Barrett’s personal or political views on these matters are, of course, irrelevant. But don’t expect Barrett to indicate how she might vote in a particular case on these matters either. To do so would violate judicial ethics.
The confirmation hearings are an opportunity for a nominee to reveal her qualifications, temperament and judicial philosophy—that is, her approach to deciding cases. But the hearings reveal a constitutional tension between the confirmation process and the judicial role. Article I vests the president with the responsibility of nominating Supreme Court justices, and Article II gives to the Senate the right to provide “advice and consent” on those nominees. The nomination and confirmation of a Supreme Court justice are, thus, inherently political processes.
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