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The
problem with asking nominees to take positions at a confirmation hearing, in my
opinion, is not that they will reveal "predispositions" (who does not have
those?) but that the nominee faces a personal conflict of interest: he or she
generally knows which answer will best advance his or her prospects for
confirmation, and will be tempted to adjust positions accordingly. This is
not true (or at least, not *as* true) when the nominee has expressed an opinion
in the ordinary course of professional or academic life, as in a law review
article. The point is that a judge's (or potential judge's) view on the
issues should not be shaped by self-interest.
--
Michael McConnell
Perhaps that does explain the recusal, but if
nominees continue to insist that judicial ethics prevent them from disclosing
their views on controverted legal issues, Senators still will be able to
invoke Justice Scalia's own recent opinion for the Court in Republican
Party of Minnesota v. White, 536 U.S. at 777-79, 781 n.8:
A judge's lack of predisposition regarding the relevant legal
issues in a case has never been thought a necessary component of equal
justice, and with good reason. For one thing, it is virtually
impossible to find a judge who does not have preconceptions about the law. As
then-Justice REHNQUIST observed of our own Court: "Since most Justices come to
this bench no earlier than their middle years, it would be unusual if they had
not by that time formulated at least some tentative notions that would
influence them in their interpretation of the sweeping clauses of the
Constitution and their interaction with one another. It would be not merely
unusual, but extraordinary, if they had not at least given opinions as to
constitutional issues in their previous legal careers." Laird v. Tatum, 409
U.S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were
possible to select judges who did not have preconceived views on legal issues,
it would hardly be desirable to do
so. "Proof that a Justice's mind at the time he joined the Court was
a complete tabula rasa in the area of constitutional adjudication would
be evidence of lack of qualification, not lack of bias." Ibid. And
because avoiding judicial preconceptions on legal issues is neither possible
nor desirable, pretending otherwise by attempting to preserve the "appearance"
of that type of impartiality can hardly be a compelling state interest
either.
A third possible meaning of "impartiality" (again not a common one) might
be described as open-mindedness. This quality in a judge demands, not that he
have no preconceptions on legal issues, but that he be willing to consider
views that oppose his preconceptions, and remain open to persuasion, when the
issues arise in a pending case. This sort of impartiality seeks to guarantee
each litigant, not an equal chance to win the legal points in the case,
but at least some chance of doing so. It may well be that impartiality
in this sense, and the appearance of it, are desirable in the judiciary, but
we need not pursue that inquiry, since we do not believe the Minnesota Supreme
Court adopted the announce clause for that purpose.
Respondents argue that the announce clause serves the interest in open-
mindedness, or at least in the appearance of openmindedness, because it
relieves a judge from pressure to rule a certain way in order to maintain
consistency with statements the judge has previously made. The problem is,
however, that statements in election campaigns are such an infinitesimal
portion of the public commitments to legal positions that judges (or
judges-to-be) undertake, that this object of the prohibition is implausible.
Before they arrive on the bench (whether by election or otherwise)
judges have often committed themselves on legal issues that they must later
rule upon. See, e.g., Laird, supra, at 831-833 (describing
Justice Black's participation in several cases construing and deciding the
constitutionality of the Fair Labor Standards Act, even though as a Senator he
had been one of its principal authors; and Chief Justice Hughes's authorship
of the opinion overruling Adkins v. Children's Hospital of D. C., 261
U.S. 525 (1923), a case he had criticized in a book written before his
appointment to the Court). More common still is a judge's confronting a legal
issue on which he has expressed an opinion while on the bench. Most
frequently, of course, that prior _expression_ will have occurred in ruling on
an earlier case. But judges often state their views on disputed legal
issues outside the context of adjudication--in classes that they conduct, and
in books and speeches. . . .
Of course all statements on real-world legal issues "indicate" how
the speaker would rule "in specific cases." And if making such statements
(of honestly held views) with the hope of enhancing one's chances with
the electorate displayed a lack of fitness for office, so would similarly
motivated honest statements of judicial candidates made with the hope of
enhancing their chances of confirmation by the Senate, or indeed of
appointment by the President. Since such statements are made, we think, in
every confirmation hearing, Justice STEVENS must contemplate a federal bench
filled with the unfit.
----- Original Message -----
Sent: Wednesday, October 22, 2003 11:16
AM
Subject: Re: recusal
Shameless self-promotion department: On
Justice Scalia's recusal from Newdow, Chris Schroeder recently suggested
here that it could be ammunition for judicial nominees who wish to avoid
answering certain questions.
At www.nationalreview.com yesterday, Robert Alt made
exactly that connection. I respond in a piece posted today. Both
are on the site's homepage today.
Matt
***************************
Matthew J. Franck
Professor
and Chairman
Department of Political Science
Radford
University
P.O. Box 6945
Radford, VA 24142-6945
phone
540-831-5854
fax 540-831-6075
e-mail [EMAIL PROTECTED]
www.radford.edu/~mfranck
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