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I suppose I’m likely ignorant and/or naïve (I’m just a retired corporate patent lawyer who did not attend a top tier law school), but it seems to me that we could learn a lot better information about judicial nominees (especially Supreme Court nominees), AND the nominees would have a lot less wiggle room to avoid answering questions, if rather than grandstanding on particular issues, the Senators asked some basic questions about the nominee’s process for reading, understanding, interpreting, and applying documents.
- How do you start reading and interpreting a document on which you are expected to make a decision (whether the Constitution, a statute, a regulation, or a contract)? Do you try to discern what the particular author intended the language to mean at the time it was written? Or do you read it as a bystander (member of the public) would have read it at the time it was written? Or do you read it as a person with specific specialized knowledge would have read it at the time it was written, such as people in specific industries or professions? Or do you read it with today’s understanding of the words and grammar used? Or do you read it as you believe the author would have wanted it to mean if the author were writing it today?
- Can a document later have a meaning different from the meaning it had at the time it was written? [Possible follow-up questions about contracts, which will raise fewer red flags than asking about the Constitution or statutes – can a judge interpret a contract to mean something different than what it would have meant at the time the contract was signed?]. Can a document today have a meaning that it never had in the past?
- If a document can have a different meaning today than it did when it was written, what types of sources are appropriate to use when determining what the proper meaning of the document is today? How would you decide what sources to use and what sources to reject (if any)? How would you approach conflicts among the selected sources if using different sources lead to different meanings?
- If you find a document is ambiguous in meaning, how do you resolve that ambiguity? What types of sources do you consult? If you consult external sources, do the external sources need to be exactly parallel with the parties to the dispute before you? Same industry? Same financial system? Same cultural history? Same legal system? For example, if you are looking to law of another jurisdiction to interpret language, does it matter if the social or legal culture of the other jurisdiction is different from the culture where the dispute before you is? If it is appropriate to look at the law of other jurisdictions to help resolve an ambiguity in a document, are all other jurisdictions to be considered equally relevant? For example, would the law of Britain be as relevant as the law of Germany? Saudi Arabia? China? If so, why? If not, why not?
- Can you imagine that an ambiguity in a document might render the matter so unclear that it would be inappropriate for a judge to resolve? Must a judge resolve every dispute that comes to the court? Might there ever be a circumstance in which a judge should return it to the people who drafted the document to resolve some other way?
I think questions of this type would be much more useful in discerning a nominee’s “judicial philosophy” than the subject-specific questions typically thrown out today. A nominee, especially one that has risen to the point of being considered for a state or national supreme court, should be prepared to answer such questions, and to explain the reasoning for those answers, regardless of whether the nominee takes a “strict originalist” or a “living document” approach or some other approach.
One of the things that bothers me about the current U.S. Supreme Court nominee (Ketanji Brown Jackson) is that she has overtly evaded questions about how she goes about making judicial decisions. She has given nonsense answers to questions about how she makes decisions, even at one point claiming she hadn’t thought about the subject. Either she’s lying and has thought about it but knows her thoughts are unacceptable, or if she truly hasn’t thought about it, she is the most incurious person ever nominated to high judicial office.
How a person makes decisions is a much more pervasive attribute than are the person’s views on particular topics.Published in