Listening to the Gorsuch confirmation hearings makes me wonder whether the judiciary has become the least honest branch of government. We have been through this tedious kabuki theater again and again: asked their positions on seminal cases, like Roe v. Wade, judicial nominees respond reflexively that they cannot answer because the same question might come before them on the bench, and it would be wrong to prejudge it.
Judges should not prejudge cases, but they do anyway. They just are unwilling to say so for obvious political reasons. Judicial candidates often are simply lying when they say they do not know how they will vote. Does anyone really believe Judge Gorsuch does not know whether he would overrule Roe?
At this point, it would be better to abandon the charade. The honest approach would be to stop judicial nominees from hiding behind a purported ethical rule against prejudging that they do not follow anyway. Opponents will argue that the change would result in litmus tests for judges, but we already have litmus tests for judges. Presidents nominate judges who share their views on the big issues. Pretending that judicial nominees have not made up their minds on these issues simply undermines respect for the process of selecting judges.
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