The Right to Ask: Reproductive Rights Depend on the Senate's Ability and Willingness to Consider a Judicial Nominee's Ideology

Scholars and commentators accross the ideological spectrum agree that it is appropriate, and indeed necessary, for senators to inquire into, and base their confirmation votes on, judicial nominees' positions and views on substantive areas of law. This is nothing new. There is ample historical precedent for the Senate to consider judicial philosophy in considering judicial nominations -- dating back to George Washington's nomination of John Rutledge as Chief Justice in 1795 and his rejection by the Senate on the basis of his views. The "advise and consent" language of the Constitution itself, and the history of the framers' adoption of this formulation, make it clear that the Constitution creates an independent role and set of responsibilities for the Senate in the confirmation process. Senators therefore have a duty to study a nominee's record and to probe during the confirmation hearing in order to form a judgment about what kind of jurist the nominee will be, based on judicial philosophy and the nominee's views on what are called "the large issues of the day." This does not mean asking a nominee for his or her personal views on questions of religion or morality or how he or she has voted on ballot measures in the privacy of the voting booth. But it does mean, as reflected in past practice, probing into a nominee's views on the correctness of important Supreme Court precedents establishing the right to privacy and its application in Roe v. Wade (1973), or the appropriate standard of scrutiny under the Equal Protection Clause for sex- or race-based classifications. A nominee's previous writings or statements should be taken seriously.