Senator Biden argued that because Senators must disclose their views on specific issues when they stand for election, Judge Roberts should be willing to tell the Judiciary Committee his views on specific questions, such as whether there is a fundamental, constitutionally protected right to refuse life-saving medical treatment on behalf of one’s critically ill relatives. In response, Judge Roberts gave Senator Biden (and those watching) a much-needed education on the difference between judges and Senators. Federal judges don’t stand for election–and they shouldn’t be held to that standard.
More broadly, seeking to get judicial nominees to disclose their views on specific subjects–when it is clear that the answer to those questions will affect individual senators’ votes on the nominee’s confirmation–creates a context in which a nominee’s specific comments could be seen as a pre-commitment or promise to approach cases in a particular way should they be confirmed. This is what creates the ethical conundrum for nominees–and what differentiates answers given to senators in a confirmation hearing from a nominee’s prior writings.