Confirmation game

The tension between politics and judicial impartiality is on stark display during recent U.S. Senate confirmation hearings.

Accounts of a Lawrence attorney’s confirmation hearings before the Senate Judiciary Committee this week provide an interesting window on the conflicts between politics and the desired impartiality of those who serve as federal judges.

Steve Six, a former Douglas County district judge and Kansas attorney general, was nominated two months ago by President Barack Obama to replace another Lawrence resident, Deanell Tacha, on the 10th Circuit U.S. Court of Appeals. On Tuesday, he fielded a variety of questions from members of the Senate committee. Like other judicial nominees seeking confirmation, Six often gave answers that were less than direct.

According to news accounts, considerable attention was given to abortion issues during the Six hearing. Sen. Chuck Grassley of Iowa wanted to know what Six thought of a new Kansas statute adding new abortion restrictions. Six pointed out that the statute was passed after he left the attorney general’s office and he had not studied it.

Grassley also wanted to know why Six didn’t reopen an investigation of Planned Parenthood records begun by former A.G. Phill Kline. Six said that wasn’t an issue he sought out and he “tried to handle it in the most professional way I could.” Grassley also wondered if former Gov. Kathleen Sebelius, who vetoed a number of bills to add abortion restrictions, put any pressure on him not to pursue that investigation. Six said he had never discussed any criminal cases with Sebelius.

Grassley, no doubt, was hoping for answers that were more definitive. However, the questions he was asking were primarily focused on political issues Six dealt with while serving in political office. As a federal judge, Six would be expected to be above political influence. In fact, legal experts defended his evasive answers on the basis that if he expressed an opinion on abortion or other controversial issues, he would have to recuse himself from cases concerning those issues if he is appointed to the Court of Appeals.

The tension between politics and the judiciary is on stark display during confirmation hearings. Senators want to know how judges will “vote” on certain important issues, in much the same way candidates commit to certain stands during a political campaign. Goodness knows that elected officials can and do change their minds, often based on shifts in the political climate.

On the other hand, the Constitution does not change. The commitment of judges isn’t to a specific set of constituents or to the political climate but to the U.S. Constitution and the laws of the land. Although some observers would argue that too many judicial decisions are influenced by politics and that some judges are trying to make new law in their legal rulings, the ideal is for judges to rise above politics and decide cases purely on the basis of the law. To express any bias on any issue during a confirmation hearing would compromise their judicial integrity.

But senators still ask, perhaps hoping that a nominee will slip, giving some clue to a stand that could be used to disqualify him or her from service.

It makes for an interesting game. Senators ask; nominees deflect.

The ideal, of course, is to fill the federal courts with intelligent, articulate people who are dedicated to impartially applying constitutional principles and enforcing the legislated laws of the nation. That’s a tall order in the current politically charged climate, but those responsible for nominating and confirming federal judges should do their best to achieve that goal.