Re: recusal

[Marty Lederman]

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 ----- From: Michael McConnell To: [EMAIL PROTECTED] 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 -----Original Message----- From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Wednesday, October 22, 2003 11:26 AM To: [EMAIL PROTECTED] Subject: Re: recusal 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 ***************************