The U.S. Constitution empowers the President to nominate candidates for Article III judgeships, but also vests the Senate with the role of providing "advice" and affording or withholding "consent" with respect to the President's nominees. To carry out this "advice and consent" role, the Senate typically holds a hearing at which Members of the Senate Judiciary Committee question the nominee. After conducting this hearing, the Senate generally either "consents" to the nomination by voting in favor of the nominee's confirmation or instead rejects the nominee. Such questions frequently include inquiries "about specific cases, judicial philosophy, and attitudes on issues that are likely to come before the Court." However, judicial nominees have often refused to answer certain questions at their confirmation hearings—or have volunteered only perfunctory responses—claiming that fully answering certain questions could violate various ethical norms governing judges and judicial candidates or impair the independence or fairness of the federal judiciary. In response to concerns regarding the proper conduct of judges and judicial candidates, judges and bar associations have promulgated a variety of "canons" of judicial ethics—that is, self-enforcing, aspirational norms intended to promote the independence and integrity of the judiciary. Beyond the canons of judicial ethics, historical practice reveals the constitutional norms that have influenced what questions a federal judicial nominee should or must refuse to answer. Here, too, however, different nominees have reached different conclusions regarding which types of responses are improper. While it is fairly clear that a sitting federal judge who has been nominated for elevation to a higher federal court should generally refrain from directly commenting about the merits of a pending case —especially a case arising from the nominee's own court —it is less clear whether (or to what extent) Canon 3(A)(6) discourages judicial nominees from answering more general questions about their jurisprudential views, controversial legal issues, and the soundness of judicial precedents that litigants may challenge in the future. Thus, while it is clear that the Code of Conduct may constrain judicial nominees from answering certain questions during the confirmation process, nominees and commentators have not reached a consensus regarding the scope of those constraints. General Trends in Questions and Answers

Supreme Court nominees have generally declined to stake out positions on issues or factual circumstances that are likely to come before the Court in future cases, resulting in a practice referred to by some as the Ginsburg Rule. Nominees' willingness to respond to these types of questions varies widely. Ultimately, however, there are few available remedies when a nominee refuses to answer a particular question. Although a Senator may vote against a nominee who is not sufficiently forthcoming, as a matter of historical practice the Senate has rarely viewed lack of candor during confirmation hearings as disqualifying, and it does not appear that the Senate has ever rejected a Supreme Court nominee solely on the basis of evasiveness.
The U.S. Constitution vests the Senate with the role of providing "advice" and affording or withholding "consent" when a President nominates a candidate to be an Article III judge—that is, a federal judge entitled to life tenure, such as a Supreme Court Justice. To carry out this "advice and consent" role, the Senate typically holds a hearing at which Members question the nominee. After conducting this hearing, the Senate generally either "consents" to the nomination by voting to confirm the nominee or instead rejects the nominee.
Notably, many prior judicial nominees have refrained from answering certain questions during their confirmation hearings on the ground that responding to those questions would contravene norms of judicial ethics or the Constitution. Various "canons" of judicial conduct—that is, self-enforcing aspirational norms intended to promote the independence and integrity of the judiciary—may potentially discourage nominees from fully answering certain questions that Senators may pose to them in the confirmation context. However, although these canons squarely prohibit some forms of conduct during the judicial confirmation process—such as pledging to reach specified results in future cases if confirmed—it is less clear whether or to what extent the canons constrain judges from providing Senators with more general information regarding their jurisprudential views. As a result, disagreement exists regarding the extent to which applicable ethical rules prohibit nominees from answering certain questions.
Beyond the judicial ethics rules, broader constitutional values, such as due process and the separation of powers, have informed the Senate's questioning of judicial nominees. As a result, historical practice can help illuminate which questions a judicial nominee may or should refuse to answer during his or her confirmation. Recent Supreme Court nominees, for instance, have invoked the so-called "Ginsburg Rule" to decline to discuss any cases that are currently pending before the Court or any issues that are likely to come before the Court. Senators and nominees have disagreed about whether any given response would improperly prejudge an issue that is likely to be contested at the Supreme Court. Although nominees have reached varied conclusions regarding which responses are permissible or impermissible, nominees have commonly answered general questions regarding their judicial philosophy, their prior statements, and judicial procedure. Nominees have been more hesitant, however, to answer specific questions about prior Supreme Court precedent, especially cases presenting issues that are likely to recur in the future. Ultimately, however, there are few available remedies when a nominee refuses to answer a particular question. Although a Senator may vote against a nominee who is not sufficiently forthcoming, as a matter of historical practice the Senate has rarely viewed lack of candor during confirmation hearings as disqualifying, and it does not appear that the Senate has ever rejected a Supreme Court nominee solely on the basis of evasiveness.