Once again the Senate Judiciary Committee is permitting a judicial nominee to dodge questions, the answers to which might jeopardize his confirmation.

The Senate Republican Policy Committee claims that judicial candidates are ethically obligated to refrain from answering questions about their views regarding specific cases. However the only authority it cites for this proposition is ABA Model Code of Judicial Conduct 5A(3)(d)(i) and (ii), which states that judicial candidates shall not:
"make pledges or promises of conduct in office...[or] make statements that commit or appear to commit the candidate with repect to cases, controversies or issues that are likely to come before the court."

The Model Code, however, is not a law or regulation. The Model Code is just that: A model code, drafted by a private organization, the American Bar Association. I looked in the Code of Conduct for United States Judges, which is binding on federal judges, and could find no analogous provision.

That could be because nominees to the federal bench and "candidates" for elected judicial office are not analogous. A straightforward interpretation of the Model Code provision is that it prohibits candidates for elected judicial office from making campaign promises to special interests, etc. It simply doesn't apply to federal judical nominees, who don't campaign for office. In any case, I fail to see how commenting on a prior decision's reasoning and rationale can be considered a promise or commitment to decide future cases a certain way. In any case, even if it were applicable, the provision is not a binding ethics rule.

If anyone knows of a binding canon of ethics that applies to the questioning of federal judicial nominees, please cite it to me.