But recall how the questioning of a Supreme Court nominee proceeds. Senators regularly ask candidates questions about legal issues that are likely to come before the Court in the future. Those questions are often framed as questions about prior Supreme Court cases: Are they settled precedents? Are they soundly reasoned? These are often designed as ways to ask the nominee: Do you pledge to follow this case?

Of course, no nominee can safely or prudently give such a pledge. First, if the nominee pledges to rule in a particular way, the nominee will face demands for recusal on the grounds that the nominee has already made up his or her mind and is not impartial. Such recusal demands, many of them based on the slenderest of pretexts, have become a common tactic in delegitimizing the justices and their decisions. By contrast, if the nominee refuses to offer such a pledge, that is taken as evidence of a secret plot to vote the other way, even if the nominee says the same thing about every prior precedent.

This is not just a matter of political perception: It also goes to the fundamental question of judicial independence. The Supreme Court is a coequal branch of government, and its core responsibility is what Alexander Hamilton described as “inflexible and uniform adherence to the rights of the Constitution.” What would we think of a justice who concluded that the Constitution required one outcome but ruled the other way out of fear of being impeached or prosecuted on the grounds of having pledged the other outcome to a senator? I would hope that most of us would consider that an intolerable corruption of the judiciary.