Proposition: A Refusal To Answer A Direct And Relevant Question Like This Should Immediately Disqualify A Judicial Nominee As Untrustworthy

Judicial nominee ducks

Anne Traum, a law professor at the University of Nevada-Las Vegas, was nominated by President Joe Biden in November  to be the United States District Judge for the District of Nevada. Traum’s name was selected by a judicial commission in Nevada consisting of Democratic State Senators Catherine Cortez Masto and Jacky Rosen. During last week’s U.S. Senate Judiciary Committee hearing, Republican Louisiana Senator John Kennedy, asked Traum, “Do you think we should forgive criminal misbehavior in the name of social justice?”

Prof. Traum replied, “Senator, thank you for that question. I recognize that all issues of crime and all responses to crime are fundamentally policy issues. So, those are important issues, they are important for our community and our nation, but I leave those policy issues to the policymakers if confirmed as a judge I would not be a policy maker.”

That does not respond to the question, and Kennedy was not satisfied. He asked again, after prefacing his second framing by saying,  “I’m not asking your opinion as a judge. I’m asking your opinion as a person, as a law professor. I’ll stipulate, with all of you, that you’re all going to be fair and unbiased.” Then he repeated,  “Do you think misbehavior and illegal acts should be forgiven in the name of social justice?”

She decided to repeat her dodge, saying, “Senator, I do believe that all criminal policy is fundamentally a policy issue…” before Kennedy interrupted to ask for the third time whether, as an individual, she believes that an illegal act should be forgiven in the name of social justice.

“Senator, that is not a view that I have taken in my work,” Traum said.

That is not an answer to the question either. “That’s no?” Kennedy said. “Is your answer ‘no?’”

Traum would not say it was “no,” and instead repeated that she has not “taken that view” in her work as a law professor.

Kennedy’s fourth try: “I’m asking, professor, what you believe. I think this is really straightforward. Do you believe that an illegal act should be forgiven in the name of social justice. It’s pretty simple.”

“Senator, I believe that we have criminal laws, criminal laws that are created by policy making bodies like this one…” Traum filibustered, and Kennedy again interrupted.

“I got all that. Do you believe that a criminal act should be forgiven in the name of social justice?” Kennedy said.

This prompted the professor’s fifth dodge: “We have not only criminal laws but we have a criminal process by which people come before the court to be held accountable if they are charged with a crime. And I have enormous respect for that process.”

Kennedy’s sixth attempt followed: “I do too. Do you believe that a criminal act should be forgiven in the name of social justice?”

Traum replied by saying that each individual that appears before the court has a unique case and she “respects that process.” Those statements also do not respond to Kennedy’s question.

So Sen. Kennedy asked the question again in the exact same words, prompting the professor to respond, “I don’t think I could say, with respect to any particular case or as a generality with respect to any category of cases.”

“Do you not have an opinion?” Kennedy asked

“I don’t have a view to share on how any particular kind of case should be handled,” Traum said. That’s also obfuscation. Kennedy did not ask if she would share her views on a particular hypothetical case. His question was one regarding principles and belief.

“If confirmed you’re going to be a federal judge. And I join my friend, Sen. Durbin, in saying judicial temperament is important. But I think being unbiased is even more important,” Kennedy said. “And I find it incredible that you won’t answer my question. So I’m going to ask it again…Do you believe that we should forgive a criminal act in the name of social justice?”

That’s attempt #8 by my count. Again, Traum ducked.

“Senator, I share the view that we should be unbiased but I also share the view that our criminal justice system and our process is very individualized so what should happen in any particular case is a matter of the process and the very specific facts and that…” Traum responded before Kennedy cut her off.

“Do you believe that a criminal act should be forgiven in the name of social justice,” Kennedy asked, for the 9th time.

Traum refused to answer again, repeating her previous detour about individual cases.

“I can’t vote for you, not if you’re not going to answer the questions,” Kennedy said.

That’s not enough. No Senator should have the opportunity to vote for a judicial nominee who won’t answer a direct, straightforward, relevant and reasonable question about a personal belief that might create a bias in assessing a case. This should also apply to Supreme Court nominees, and there have been many, who similarly refuse to answer candidly about their personal beliefs about abortion, or any other topic. I regard Traum’s responses not only as evasive, but also as disrespectful, arrogant, and dishonest. They also obviously meant “yes,’ because she would not say “no.” She’s untrustworthy by definition. Since we cannot count on Senators to refuse to vote for someone who has proven she is unfit to serve as a judge, an ironclad rule is necessary. After all, no judge would permit a witness to dodge a question like that. If a judicial nominee won’t answer a clear yes or no question with “yes” or “no,” that should be the end of the process. He or she is disqualified.

11 thoughts on “Proposition: A Refusal To Answer A Direct And Relevant Question Like This Should Immediately Disqualify A Judicial Nominee As Untrustworthy

  1. Her insistence on answering that she can only take this situation on a case-by-case basis is enough for me. She clearly believes crimes committed by progressives during social justice protests should be forgiven; crimes committed by conservatives during protests they consider to be connected to social justice should be prosecuted to the furthest extend of the law.

  2. Prof. Traum replied, “Senator, thank you for that question. I recognize that all issues of crime and all responses to crime are fundamentally policy issues. So, those are important issues, they are important for our community and our nation, but I leave those policy issues to the policymakers if confirmed as a judge I would not be a policy maker.”

    The fact that we have laws and prescriptive punishments suggests that the policy had been made. So, will she follow those policies, or will she undermine the established policies?

    It is obvious she will do the latter, and I believe AM above is on to something if we consider what the DC Federal court and the DOJ is doing to those January 6 rioters who are locked up without bail and not getting speedy trials as opposed to all those not arrested or quickly released for the three-day riot in front of the white house or who attacked the Federal courthouse. We have selective justice as I see it.

  3. At the center of of Sen. Kennedy’s question “Do you think illegal acts should be forgiven in the name of social justice?” is the belief that the rule of law in a court of law reigns over the rule of social justice in the court of public opinion.

    The entire exchange between Sen. Kennedy and Prof. Traum can be seen at 2:14:17 in this video but I suggest watching Sen. Grassley’s question regarding the criminal justice system and Prof. Traum answer at 2:05:14.

    I really would have liked Sen. Kennedy to have prefaced his question with something like this first,

    Prof. Traum, based on your nomination, presence in front of this committee, and taking a public oath to tell us the truth, the whole truth and nothing but the truth so help you God you are prepared to answer our questions. We have an obligation as part of the Senate Judiciary Committee to publicly ask you questions, some of which will be pointed, to help us understand what kind of judge you will be if you’re confirmed.

    First Question; Yes or no, do you believe in the rule of law?

    Second Question; Yes or no, do you think illegal acts should be forgiven in the name of social justice?

    A judge’s belief that the rule of law in a court of law reigns over the rule of social justice in the court of public opinion must be foremost in their opinion otherwise they are an activist judge.

    If Prof. Traum couldn’t answer “Yes” to the first question and “No” to the second question without hesitation then I think it’s signature significant and she must be disqualified.

  4. “What’s your favorite color?”
    “Blue?”
    “So you can answer questions! By my count I’m about 1 for 20”
    (Working off memory, but that’s roughly the dialogue)

    Part of Biden’s problem (And he has so many, and so many more serious than this, reflected in his approval numbers, but one of them) is that he’s acting as if America writ large have him a massive mandate to make sweeping and fundamental changes. That’s… Just not true. America would have voted for a fire hydrant so long as the hydrant didn’t have a bad combover and the propensity to say “Yuge”. A bare bones majority in the house and a not-quite-but-functional majority in the senate is not, never has been, and should not be enough. And nowhere is this more obvious than in Biden’s nominees.

    Trump’s nominees were excellent. They really were. Outside of a couple of outliers, the rule was that Trump nominated competent, uncontroversial nominees, they were confirmed with much screaming about the sky falling down, and then the process of government continued.

    Biden’s nominees seem to be picked with the express purpose of destroying the institutions and checking diversity boxes. A literal commie in charge of bank regulation? Anti-justice activists as judges? A twitter troll who’s only semi-relevant CV lines involve licking Hillary Clinton’s boots as Director of the OMB? I will never. NEVER. Take seriously the fainting couch hypocrisy of Democrat’s cries for “norms”.

  5. I am on vacation, so I will keep this brief. ( If I were working, I could take all day crafting a response.)

    Her first question was absolutely correct.

    It was a stupid question that is wholly irrelevant to the job she needs to do. A judge listening to this would have sustained a relevance objection.

    I hate when Senators ask these sorts of questions because they are usually grandstanding.

    Usually, it is the other side that does this.

    There is always an implied gotcha in these questions.

    When the other side does this, it is coupled with demanda that candidates recuse themselves.

    Judges are required to appear unbiased and not to prejudge cases. They are bound by judicial canons not to speak out on issues that may come before them. This exchange arguably firs this, especially when the Senator is simply using this to score political points.

    Yes, these exchanges annoy me, but usually, I am more annoyed by the politician than the judicial candidate.

    -Jut

    • Perhaps the Senator’s question would be more relevant to vetting a U.S. Attorney nominee? I believe they go through a hearing process, but I may be wrong.

    • I don’t agree, obviously. What Kennedy is raising is a current fad, especially with academics, like this candidate, and it is disturbing rampant in the law. If she was an experienced judge, then you would be right, but she isn’t. The belief Kennedy is asking about is a bias, and for a judge, the equivalent of juror nullification. And the answer is easy: it’s not a “gotcha!” “Of course not, Senator. This is a nation of laws, and all members of society are equally obligated to follow the law, regardless of their personal circumstances.” How hard is that?

      • Great point. Why is an academic going onto the District Court bench anyway? Isn’t that more an appellate court move? Aren’t District Court judges drawn from federal practitioners?

  6. Literally every nominee for every federal judgeship for the past couple of decades, certainly those nominated when the President and Senate majority were from the same party, would fail your test. The so-called hearings are all dog and pony shows with pre-determined, politically based, outcomes. Senators pretend to care about answers; nominees pretend to answer. It’s been a long time since literally any Senator paid any particular attention to a nominee’s actual credentials. Rather, hearings are a time to prop up a nominee from your own party or try to score points (for oneself, not for the good of the country) against a nominee from the other party. And nominees have been told by political handlers that they’ll alienate someone somewhere if they express an honest opinion, so they adopt a contemplative attitude and concede that many people believe that grass is green.
    Remember when Amy Coney Barrett was nominated and Mitch McConnell immediately proclaimed it was his job to get her confirmed (N.B. not to get her a fair hearing before the election)? No one bothers even to keep up the pretense anymore.
    To quote the great 20th century philosopher Lily Tomlin, no matter how cynical I get, I can’t keep up.

    • Curmie said:

      Literally every nominee for every federal judgeship for the past couple of decades, certainly those nominated when the President and Senate majority were from the same party, would fail your test. The so-called hearings are all dog and pony shows with pre-determined, politically based, outcomes.

      Indeed. We have seen the same thing from every judicial candidate when it comes to getting pinned down on any issue of the day. This reminds me of how conservative judicial nominees answer the abortion question.

      Absent significant controversy prior to nomination in the form of writings or actions documented in some way, these hearings are little more than fait accompli and are mostly used as a source for political commercial quotes and bites — which is, honestly, about all they are good for.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.