Greater transparency

Two recent vacancies on the Virginia Supreme Court have brought the complex tensions of judicial confirmation to the foreground of Virginia politics once again. The death of Judge Leroy Hassell, Sr., and the retirement of Justice Lawrence Koontz, Jr., mean Virginia's already-divided General Assembly has a couple of agonizing decisions in store. Possible nominees include Mark L. Earley, Sr., former president of Prison Fellowship, and Cleo Powell, the first African American woman to serve on the Virginia Court of Appeals.

At their confirmation hearings the nominees, whoever they are, will be diplomatic, articulate, knowledgeable, and punctiliously guarded. The vetters will sit with a political checklist of hot-button issues and ask questions about abortion, or gay rights, or federalism, or perhaps random hapless toads.

The nominees will respond with a smooth recitation of reasons why they should not answer the questions. Then, knowing almost nothing about the nominees, we will "democratically" send them to a building where they will be insulated from democracy for the rest of their lives.

This is a problem.

Judges possess incredible power but are not (in Virginia) beholden to voters. In a government of the people, by the people, and for the people, this reality is disconcerting. Nevertheless, we accept the existence of an independent judiciary and satisfy ourselves with a Monday morning quarterbacking approach to monitoring court decisions.

The one slender measure of control we do have is the judicial confirmation process, and the four recent United States Supreme Court appointments show how much Americans care about vetting those to whom we entrust this robed office. It makes sense: before a nominee should be given life-time tenure and virtually-unaccountable discretion, the people should know who the nominee is and how she will conduct herself.

Judicial nominees keep personal opinions shrouded in part to simply survive. The last Supreme Court nominee to be transparent during confirmation was Robert Bork, who is not coincidentally the last Supreme Court nominee to be rejected by the Senate. Since Bork's infamous hearing in 1987, subsequent appointees have all successfully opted for turbidity.

The second reason nominees are guarded is more ideological. Chief Justice John Roberts articulated it well during his confirmation hearing when he said, "Judges wear black robes because it doesn't matter who they are as individuals," and he called it a "distortion and a perversion" of the judicial process for a nominee to testify under oath about a decision he would reach in a particular case. Judges should always be impartial and weigh each case on its own merits without burdening litigants with the knowledge that their judges had previously committed themselves to contrary outcomes. Justice Ginsburg similarly refused to "preview or forecast" any decisions likely to come before her on the court.

On close examination, neither of the rationales for judicial secrecy is satisfactory. As grueling and uncertain as the vetting process may be, it is the only effective democratic check on their office. Furthermore, once a judge rules on a case, he goes on record as having a particular opinion on a given legal topic, yet we do not say that he is partial or non-independent when he sits down later to hear a similar case.

If We the People are going to insist on greater transparency on the part of our judges, this is what we can do: learn to respect the independence of the judiciary and ask the right questions of our nominees.

Judges must know and apply the law. Period. When asked endlessly about policy preferences, they are understandably nonplussed. The purpose of democratic involvement in judicial confirmation is to ensure the people who fill these offices know and apply the law, not to smuggle an agenda into law through judicial puppets.

As the General Assembly and Gov. McDonnell seek to fill these vacancies, the people should insist on answers, but they should ask the right questions: does this nominee know the law (as it is, not as we would have it to be)? Does this nominee have a record of impartial application of the law? Does this nominee show a commitment in both personal and professional life to the rule of law as the highest social good? How does this nominee interpret texts? These kinds of questions deserve transparent answers. When we learn to leave our other questions at the door, perhaps we can introduce the beginnings of democracy to this undemocratic office.

Holly Vradenburgh is a student at the University of Virginia School of Law.

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