Re: recusal

[Marty Lederman]

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 ----- From: Matthew J. Franck To: [EMAIL PROTECTED] 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 ***************************