Last week, this blog explored whether Sonia Sotomayor will answer questions directly about Ricci v. DeStefano, which the Supreme Court is set to rule on this month. The White House has indicated Sotomayor cannot answer questions on the case because of judicial ethics rules, but legal experts across the political spectrum aren't so sure.

Tom Goldstein, Supreme Court litigator at Akin Gump and founder of SCOTUSblog, pointed out that "this situation has come up before where a nominee decides a real significant and high-profile case that is going to come before the justices." Indeed, a similar issue came up in 2005 when John Roberts faced scrutiny over Hamdan v. Rumsfeld, which involved the use of military commissions for Guantanamo Bay detainees.

Roberts was part of a three-judge D.C. Circuit Court of Appeals panel that ruled in favor of the legality of military commissions in Hamdan; days after that ruling, President George W. Bush nominated Roberts to the high court. Roberts' confirmation hearings began about a month after the petition for a writ of certiorari regarding Hamdan was sent to the high court. Weeks after Roberts was confirmed, the court agreed to hear the case in its next term.

The issue of whether Roberts could talk about Hamdan arose then just as it has now with Sotomayor and Ricci. In his confirmation hearings, Roberts cited a specific passage of the Judicial Canons of Ethics, Canon 3A(6), that he said barred him from talking about pending cases, and he refused to answer senators' questions on Hamdan.

Roberts' refusal to answer didn't impede his confirmation. When the high court heard Hamdan, Roberts, then chief justice, recused himself as the court reversed the decision he had joined on the D.C. Circuit panel.

Of course, there are marked differences between the two scenarios. Arguably, there will be more pressure on Sotomayor leading up to her hearings than Roberts faced, since the high court hadn't even agreed to hear Hamdan at the time of his confirmation process.

Even though Ricci may still be pending after the court rules on it, the chances of Sotomayor seeing the case again would be slim. Nonetheless, when it comes to judicial ethics rules, even a slim chance based on unlikely scenarios and technicalities may provide ample reason for refusing to answer questions about a live case.