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13 Harv. J. L. & Pub. Pol'y 229 (1990)
Confirmation Ethics: President Reagan's Nominees to the United States Supreme Court

handle is hein.journals/hjlpp13 and id is 245 raw text is: CONFIRMATION ETHICS: PRESIDENT REAGAN'S NOMINEES TO THE UNITED STATES SUPREME COURT STEVEN LUBET* I do not believe that as a nominee I can ... en- dorse or criticize specific Supreme Court decisions presenting issues which may well come before the Court again. - Sandra Day O'Connor before the Senate Judici- ary Committee, 1981 Griswold v. Connecticut does not sustain its burden Roe v. Wade contains almost no legal reasoning. Robert H. Bork before the same Committee, 1987 I. INTRODUCTION The confirmation hearings on the nomination of Robert Bork by President Reagan to the United States Supreme Court epitomized the modem trend toward expanded review ofjudi- cial nominees.1 In 1987, Judge Bork testified before the Senate Judiciary Committee for thirty-five hours during five days,2 an- swering nearly all of the Committee's pointed and specific questions. In so doing, he boldly went where no nominee had gone before, stating his opinions on controversial legal issues with clarity and force. Although other nominees set limits, Judge Bork simply spoke his mind. If we were to apply Justice O'Connor's principle of refusing to answer questions regard- ing past, present, or future legal issues that could again come before the Supreme Court on the ground that it would be im- proper,3 it would seem thatJudge Bork committed impropriety * Professor of Law, Northwestern University. B.A., Northwestern University, 1970; J.D., University of California at Berkeley, School of Law, 1973. The author is grateful to Ron Rotunda, Randy Barnett, Ray Solomon, Linda Lipton, Tom Morgan, Erwin Chemerinsky, and Cynthia Bowman for reading earlier drafts of this article. 1. See Freund, Appointment of Justices: Some Historical Perspectives, 101 HARV. L. REV. 1146 (1988). 2. See Hearings Before the Senate Comm. on theJudiciary on the Nomination of Robert H. Bor to be Assoc. Justice of the Supreme Court of the United States, 100th Cong., 1st Sess. 845 (1987) [hereinafter Bork Hearings]. 3. At the outset of her testimony, Justice O'Connor advised the Senators that she