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I very much appreciate Judge McConnell's
response. Some very hesitant, and necessarily incomplete,
reactions:
As I understand his post, Judge McConnell is not
implying that there is anything the matter with judges having expressed a view
of a contested legal issue that later comes before them for decision in a case
(i.e., he does not disagree with the argument of Justice Scalia in
RPoM); instead, he is making the much more interesting suggestion that,
when asked to express views in the context of a confirmation hearing, a
nominee will have an incentive to withhold (or temper) her actual
views, and will instead articulate the views that the Senate wishes to
hear. In this way, the Senate will in effect have extracted a sort of
promise from the nominee to decide cases in a way that might, in fact,
diverge from the way in which the future judge would decide it "on the
merits." (If I'm misunderstanding or mischaracterizing the point, I
apologize, and welcome clarification.)
But what should follow from this? Judge
McConnell is, I think, suggesting (quite accurately) that certain nominees
will fail to tell the "whole truth" under oath at their hearings. (His
delicate euphemism is that they "will be tempted to adjust positions
accordingly.") Of course, this will not always be the case -- Judge
McConnell himself is perhaps the best example of that. (From what I read
of his hearing, he was refreshingly forthcoming and candid about his views on
many contested issues, even where his views obviously would not have curried
favor with certain Senators.) But as an empirical matter, I do not doubt
that this does, in fact, happen on occasion.
Is that a bad thing? No doubt it is
unfortunate in one respect, if it means future judges either deciding cases
against their better judgment or, alternatively, deciding to act in a manner
inconsistent with their sworn testimony. But is such a prospect a good
reason for Senators not to examine a nominee's views on issues
that may come before the court? (I take this to be Michael Froomkin's
question.)
I don't believe Judge McConnell is suggesting that
a Senator's vote (any more than a President's decision to nominate)
should be unaffected by the likelihood of a nominee's views -- and future
votes -- on important legal questions. So what is a Senator to
do, knowing that the nominee's answers under oath might be an "adjust[ment]" of
the nominee's actual views? Imagine a nominee who believes "X" about
an important question that may be the subject of litigation, and a Senator who
would vote against the confirmation of a nominee with such views. If
the nominee is forthright, she will lose the Senator's vote -- but perhaps
that's as it should be. On the other hand, it's possible the nominee
who believes "X" will instead testify that her view is "not X" -- and the
Senator knows this is a possibility, and also knows that, in such a case, the
question might "lock in" the nominee to a view that will result in judicial
decisions that are (in the Senator's view) proper or optimal.
My initial inclination is to say that I have little
sympathy for such a nominee who, under oath, "adjusts" her positions under
questioning, so as to keep the Senator from learning the information relevant to
the Senator's decision. I agree that, if the result is a judge who
later decides cases in conformity with her testimony, rather than in accord
with her actual views of the "right" answer, that is something to be
avoided, and regretted. Judge McConnell is, of course, absolutely
correct that a judge's decisions on issues should not be shaped by
self-interest. But if a judge with acknowledged views "X" would not have
been confirmed in the first instance, whose fault is it that the judge is
constrained from ruling "X" in a future case? In such a case, the
judge will have been acting, in essence, as a "confirmable" judge would
have acted.
Of course, the principal reason a Senator asks the
nominee to state her views on question X is not so much to extract an implicit
promise for future decisions from that judge-to-be
(although obviously the Senator knows that that might be the result --
salutary, from the Senator's view -- in some cases); rather, it is to send
a signal to the President that the Senator is not inclined to
vote for the confirmation of a judge with such views. A President who
wishes his nominees to testify forthrightly -- or who, like Judge
McConnell, does not wish to encourage the phenomenon of extracting
less-than-candid testimony to "lock in" judges on views that they do
not hold -- will then take that prospect into account in making
nominations. In this modest way, the Senate (or one Senator, at least) can
try to prevent the appointment and confirmation of judges who will decide cases
based upon constitutional or jurisprudential views that are (by the Senate's or
Senator's lights) disfavored or harmful.
I do not mean to suggest that this is an easy
question. But I'm not certain that the unfortunate possibility of a
testimonial "adjustment" of views is sufificent reason for Senators not to
seek candid testimony from nominees on dififcult and important legal questions,
even (especially?) if such questions might be the subject of a case that comes
before the judge should she be confirmed.
----- Original Message -----
Sent: Friday, October 24, 2003 9:22
AM
Subject: Re: recusal
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
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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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