It does go to the confirmation process, but more specifically to the idea that it is through the appointment/confirmation process that The People have an opportunity to influence the nature of constitutional policymaking on the Supreme Court.
It is fine for a nominee to have a constitutional vision that includes the view that there is no general constitutional protection for personal privacy interests, but it is then up to Senators to decide whether that is a constitutional vision that they want to empower. It is also fair game for a nominee to say that s/he does not want to express any view on the Constitution; Senators then have to decide whether to take the chance on the nominee anyway. It is also possible that you can express your sincere views as a nominee and then change your mind. The trouble comes when a nominee expresses an insincere view of the Constitution because s/he believes that this is the only way to win confirmation. If anyone wants to defend THAT hardball tactic I would be interested in hearing the argument. HG ----- Original Message ----- From: Frank Cross <[EMAIL PROTECTED]> Date: Thursday, June 26, 2003 12:51 pm Subject: Re: Thomas in Lawrence v. Thomas during Confirmation > Howard's point goes to the confirmation process, I think. The Presidential > party typically argues that the Congressional party should not ask such > specific questions, because it will interfere with judicial independence > and precommit judges to vote certain ways. Insofar as its assumptions are > true, the point is right. The rejoinder, which I think is correct, is that > judges are expressing an opinion and not precommitting, which the Thomas > experience demonstrates. > > Now, when the issue is such an abstract one, divorced from case facts, and > the contradiction is so stark, it seems pretty plausible to suggest that > the nominee was dishonest. However, Thomas has an out. As I recall, he > consistently insisted that he hadn't thought about these issues deeply. > It's perfectly natural for a person to change his or her mind after deep > reflection. Assuming that Justice Thomas has engaged in such deep > reflection since joining the Supremes. > > > > At 12:28 PM 6/26/2003 -0700, you wrote: > >I hope Mark's point is not lost in all this. Is there a way to reconcile > Thomas at confirmation with Thomas here? What reassurance can > conservatives offer those who worry that Thomas was not honest during his > hearings? Are there any interesting constitutional implications associated > with judicial nominees who say one thing during confirmation hearings and > something else once they are on the bench? > > > >Howard Gillman > >USC Political Science > > > >----- Original Message ----- > >From: Mark S Kende <[EMAIL PROTECTED]> > >Date: Thursday, June 26, 2003 11:39 am > >Subject: Re: Bowers Overruled > > > >> I'm trying to figure out how to descirbe Thomas' statement in the dissent > >> that there is no general right to privacy in the U.S. Constitution or Bill > >> of Rights. According to Gerber, First Principles at 58, "Thomas testified > >> that there is a right to privacy in the Fourteenth Amendment." Similarly, > >> Mayer and Abramsom's book, Strange Justice, says that "Thomas also > >> steadfastly refused Biden's invitation to state his position on abortion, > >> going only so far as to endorse a constitutionally protected right to > >> privacy." (pp. 216-217). Is this an example of an "evolving > >> jurisprudence"? Mark > >> > >> Mark Kende > >> Professor of Law > >> University of Montana School of Law > >> Missoula, Montana 59812 > >> 406-243-4317 (phone) > >> 406-243-2576 (fax) > >> > >> > >> > > > Frank Cross > Herbert D. Kelleher Centennial Professor of Business Law > CBA 5.202 > University of Texas at Austin > Austin, TX 78712 > > >
