Posted by Orin Kerr:
More on the Harlan Nomination:
http://volokh.com/archives/archive_2006_01_08-2006_01_14.shtml#1137093126
In reading through Tinsley Yarborough's book on Justice Harlan, I came
across another interesting passage about whether Supreme Court
nominees should testify about how they would decide cases if
confirmed. I know that Supreme Court nominees didn't testify in person
until Felix Frankfurter, but I have seen a number of suggestions that
the refusal to answer questions once called is largely a post-Bork
phenomenon.
Yarborough's book suggests a very different picture. On page 98,
Yarborough excerpts a letter from Chief Justice Earl Warren to
then-nominee John M. Harlan offering advice on how to testify before
the Judiciary Committee. Warren had asked the sitting Justices what
advice they would give Harlan, and he reported the results of his
survey back to Harlan:
Most of them were of the opinion that if they were in your place,
they would not answer questions relative to their views of the
Constitution, statutes or legislation. Two of the Justices stated
that they would answer very general questions in this field but
nothing that was specific.
Warren recommended that Harlan should refuse to answer any questions
about the law, as the Senators were not likely to be satisfied with
the kind of general answers a nominee could appropriately provide:
It seems to me that if the Committee attempted to probe your mind
on legal matters, it would be for a definite purpose and they would
not be satisfied with general questions and answers if the matter
was opened up at all.
Yarborough, at 98-99. I haven't looked into the history myself in any
detail, but I thought this was pretty surprising.
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