August 12, 2005,
Anyone interested in the issue of what a Supreme Court nominee may properly be asked will be the richer for reading the discussion over in Bench Memos among Mark Levin, Gerry Bradley, and Ramesh Ponnuru. Iíve been baffled about why this is so controversial. But having read their thoughtful contributions, itís easier to see why the prospect of senators uninhibited about probing Judge John Robertsís views on important precedents which seems like a no-brainer to me is so troubling to people reasonably concerned about the integrity of the judicial process.
In the minds of most sensible people, there is a correlation between questions and answers. It is what Bradley characterizes as a ďtight symmetryĒ the idea that if itís appropriate to ask then it is required to respond. Of course, if those are the rules of the road, itís impossible to argue with Levinís logic. There is no judge to sustain objections to improper questions at a Senate hearing (chairman never do such a thing). Thus, a senator who was hell-bent on voting against a nominee could simply ask questions he knew the nominee would decline to answer and cite that refusal as a reason to argue against confirmation on purported obstruction grounds.
This fear is a worthy one. Nevertheless, it does not match up with my experience as a litigator and especially as a prosecutor. In reality, in most official hearings, there is what I might call a ďloose symmetryĒ between questions and answers. That loose symmetry, furthermore, tends to play out in a couple of fairly predictable ways. When youíve gotten used to that, you end up thinking itís not a big deal. Itís an everyday fact of life in trials, hearings, interrogations, etc., where it is a commonplace to interview arrestees, wives, husbands, doctors, priests, and sometimes even lawyers that is to say, people with legally recognized privileges which permit but do not require them to refuse to answer certain questions.
In this context, most questions that are proper to ask should indeed be answered. But not all questions and, importantly, not many of the questions that the examiner would really want answers to. It is central here to bear in mind the following principle: The privilege is not self-executing which is a five-dollar way of saying there is nothing improper about asking a question that the witness has a privilege not to answer. Generally, it is up to the person who has the privilege to invoke it.
For example, an arrestee asked a question that could incriminate him is privileged under the Fifth Amendment to refuse to answer, but he can also waive that privilege and respond (as he always did on NYPD Blue, or else crime could not have been solved in an hour minus twelve minutes of commercials). Such a response counts, even if it convicts him. And in the real world, the questions the arrestee does not want to answer are precisely the questions his interrogator should be asking that is, just because you suspect the guy wonít answer doesnít mean you shouldnít ask. But there is a flip-side of the coin: If you know full well that youíre asking a lot of questions the witness has a right not to answer and wonít answer, it is very likely (Sen. Boxer) that the jury will think you are badgering the witness, rather than that that the witness is being stingy. That is, the jury will end up thinking it is the questioner, not the witness, who lacks respect for the process.
The way this works in practice has bearing here. Some witnesses invoke their privileges up front as a claim of right not to answer any questions. Those claims are often dubious (e.g., if you donít really believe an answer could be incriminating, claiming the Fifth Amendment right not to answer is fatuous; ditto claiming a privilege not to respond when a question doesnít really call for revealing a confidential communication between, say, attorney and client, or priest and penitent.) If the witness is across-the-board uncooperative and appears to have a shallow basis for assuming such a posture, it is proper on the factfinderís part to conclude that his credibility and character are wanting.
On the other hand, many witnesses will try to answer as many questions as they can in good faith, and will invoke a privilege only in response to a question as to which the privilege arguably applies. When this happens, the factfinder ends up getting a lot of information: you learn what the witness has to say on most subjects, and you even get a window into his intelligence and his integrity based on when and why he chooses to invoke the privilege not to respond.
My sense, for what little it may be worth, is that Judge Roberts will fit comfortably into the second category. He will try to answer many if not most of the questions, and those answers will be informative about who he is and where heís coming from. And he will have a good reason, based on the integrity of the judicial process, when he elects not to answer a question.
The senators, moreover, will have what they are entitled to: There will be no hindrance on what they can ask, and Judge Roberts will provide them with enough answers that they can make a discriminating appraisal about his fitness and character.
So, again, ask him the questions. And weíll all be edified by what he answers Ö and what he chooses not to.
Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.