I don't think the idea that senators ought to question judicial nominees carefully about their judicial philosophy, even asking how they would rule on hypothetical or actual cases, is self-evidently right, but I do think it is right, and I confess to being very puzzled by the fact that this seems a minority viewpoint. After reading Paulsen's article on the issue (YLJ 150, 2, p. 549) I'm not sure I have much to add, but I'll try to articulate my ill-informed (I'm not even a law student) thoughts on what sort of confusion might be behind the opposition to specific questions.

(What follows is influenced by Martin Shapiro; see his Courts: A Comparative and Political Analysis.) Courts do a number of things, but one of the things they do is dispute resolution. There is a certain intuitive appeal to the idea of appealing to a third, neutral party, and courts can be seen as institutionalizing this. But as we move from the idea of the judge as an impartial mediator, applying norms either chosen or agreed to by both parties, towards a conception of the judge as applying preexisting (and by no means voluntarily chosen) norms to individual situations, a judge whose application of norms will result in authoritative norm-creation in later disputes--as we move along this line, the idea of neutrality and impartiality needs to shift to accomodate this. And it seems to me like some of the opposition to litmus tests may arise from seeing norm application and creation through the same lens as pure dispute resolution--a confusion that our system of concrete review, where every determination of constitutionality must be embedded within a live case or controversy, certainly encourages.

When the goal is to resolve disputes, an unbiased judge is better all around: the disputants will be more likely to accept his ruling. What you want is someone whose interests in the outcome are entirely orthogonal to those of the parties. Of course, even here, it's not clear that the best path to such impartiality is to not ask questions about the potential judge's views when selecting them--it doesn't seem to be how we go about selecting juries, certainly (at least on TV).

But even if it were the right way to go about getting this kind of impartiality for pure dispute resolution, norm application is different. You don't want bias here either, but you also want a judge who applies the laws correctly. That is to say, if the law says "gambling debts can never be enforced," we want the judge to always be on the side of the gambler and not the bookie. The target has changed--we no longer care so much about finding common ground between two parties with differing interests so much as we care about upholding the integrity of the norm in question. If this means being "biased" against a certain class of litigant, so be it; the bias here is in the law and not in the judge.

But once we have externally imposed rather than freely chosen norms, judges have a new goal: consistency and transparency. We're looking to minimize variance, if you will, and not simply have an unbiased mean, where the target is whatever your preferred ideal of law is (public meaning of the law at the time of its enactment, whatever). Why do we care about variance? Well, a real problem with norm application of this sort is that someone may be found to have violated a law whose application to the case was quite unclear ex ante; there is a very real problem of retroactive punishment whenever we are dealing with hard cases. The more uncertainty there is surrounding the correct application if the norms, the more hard cases there are, and the more this problem of retroactive punishment becomes an issue.

If you're picking judges, then--people who will not only act as good-faith mediators between disputants, but who will also act to apply and articulate laws--it is important to minimize this uncertainty. You want judges of impartial temperament, sure, but this has to be a matter of not letting the identities of the parties affect the judge's willingness to construe the law one way or the other, rather than being impartial between the law being X and the law being Y.

I've been looking over the testimony in Scalia's confirmation hearings, and it's interesting. Scalia categorically refused to answer questions concerning specific rulings, but his main justification seemed to be a confused idea of impartiality, rather than the interbranch independence view that Paulsen articulates and dismantles in his review article. Scalia explains:

"Let us assume that I have people arguing before me to do it or not to do it. I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that. I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter."

Now, if I come before Scalia and I'm trying to convince him that there's a constitutional right to abortion, I'm in trouble, no question about it. But this is true whether or not Scalia has officially stated in his confirmation hearings that he does not believe there is one. Indeed, I will be a lot better off if Scalia has put himself on record in the matter, because this will allow me to tailor my argument to better fit his way of looking at the problem. The more all parties know about the beliefs of the judges, the better they are, because certainty about what the law is going to be declared to be is quite helpful.

In short, the only sort of bias I deserve to be protected against, as an advocate, would be a bias that causes the judge to ignore my arguments entirely out of dislike for me or for my client. It is true that I also want a judge who is willing to reconsider his views about what the law is in light of new arguments, but this openmindedness is a distinctly different virtue from "impartiality" and has absolutely nothing to do with a refusal to admit to one's current beliefs about what the law is during a confirmation hearing.

So, yes, I'm definitely in the Paulsen/Yoo camp on this one, and I'd really like to know why Larry Solum and others find it so astonishing; there's clearly something here that I'm missing. Is it just that Senators ought not to base their confirmation votes whether or not they believe the nominee will correctly interpret the Constitution? I really can't understand such an idea; how could it be consistent with their oaths to uphold the Constitution?

As PG points out, H.R. 3058 has passed, which forbids the use of federal funds "to enforce the judgment" in Kelo. What exactly this means is unclear to me. Does the fact that it refers to the "judgment" rather than the "opinion" mean that federal funds can be used for any economic development project so long as it isn't the one that was at issue in New London?

The Washington State Supreme Court today upheld the statutory authority of a taking for the Seattle Monorail. There was also a fierce dissent:

In the wake of Kelo, legal scholars and citizens exulted that Washingtonians were insulated from such abuses because the plain language of the Washington Constitution, as previously enforced by this court, afforded broader protection against eminent domain abuse than its federal counterpart. See Const. art. I, sec. 16. Unfortunately, the majority of this court is less enlightened than the citizenry or less inclined to restrain public agencies in their taking of private property. I side with the citizens and our Washington Constitution. I therefore dissent.