The Judicial Role

October 22, 2003 8:36 AM

Justice Scalia's recusal in the Pledge case has prompted a serious debate on the judicial role. Robert Alt has suggested that the Justice's recusal carries an important warning for the Senate in confirming new judges; if the Senate requires the nominees to answer questions about their opinions on potential cases, those nominees would have to recuse themselves if those cases later indeed came before them. Matthew Franck, on the other hand, suggests "this argument ... permits the requirements of judicial ethics — and even a terribly broad reading of them — to trump the constitutional obligation of senators to inform themselves adequately about the kinds of judges they are being asked to confirm." [more inside]
posted by monju_bosatsu (11 comments total)

Professors Volokh and Solum have both weighed in with their opininons on the recusal issue. For more scholarly background on the issue of judicial review, read Randy Barnett on the Original Meaning of the Judicial Power, Jacob Levy on Ancient and Modern Constitutionalism [.doc], Mark Tushnet on Constitutional Hardball, Larry Kramer on Popular Constitutionalism [.pdf], and Bradford Clark on the Supremacy Clause as a Restraint on Federal Power.

For more legal theory, keep up with Lawrence Solum on Legal Theory Blog and his excellent Legal Theory Lexicon.
posted by monju_bosatsu at 8:37 AM on October 22, 2003

if the Senate requires the nominees to answer questions about their opinions on potential cases, those nominees would have to recuse themselves if those cases later indeed came before them

This is silly. The Senate should never ask nominees to answer questions about actual court cases that may later come before them. This should not prevent the Senate from asking nominees about hypothetical court cases, or about broad legal and ideological questions.

In Scalia's case, as I understand it, he had commented on the specific case in question.
posted by Slothrup at 9:04 AM on October 22, 2003

It seems to me that the point of confirmation is to determine the candidate's fitness to interpret the the law, not whether they hold certain political opinions -- something Franck's argument appears to be missing. To use his own example, yes, "Was Roe v. Wade correctly decided?" would be an appropriate question, and an answer addressing the way the constitution was applied would be an appropriate answer. However, answering a question like "Is abortion wrong?" would raise questions about impartiality should the issue come up again.
posted by transient at 9:07 AM on October 22, 2003

Should the Democratic senators repeat the kind of case and issue-specific questioning that they directed at Estrada, then Chairman Hatch must remind the members of the ethical rules applicable to the nominee, and prevent another candidate from being subjected to a judicial Catch-22.

In the case of Estrada, no one knew jack shit about him. With paltry evidence of his judicial experience, not asking pointed questions exhibits a lack of due diligence.
posted by machaus at 9:12 AM on October 22, 2003

Senate questioning is vital to preventing justices being approved for the bench who cannot rise above their religious and political beliefs when interpreting law and the Constitution. We see the results when this vetting process fails in Scalia himself.
posted by nofundy at 9:16 AM on October 22, 2003

It seems like there's a big difference between a judicial nominee getting asked in a confirmation hearing about either specific rulings or one's views on certain issues and a judge giving his opinion in the form of a lecture.

On preview: what slothrup said.
posted by bshort at 9:34 AM on October 22, 2003

It's not like we don't know what Scalia thinks about the matter anyway. He might as well have phoned in his decision when he was admitted to the Bench.
posted by The Michael The at 9:48 AM on October 22, 2003

It seems like there's a big difference between a judicial nominee getting asked in a confirmation hearing about either specific rulings or one's views on certain issues and a judge giving his opinion in the form of a lecture.

A fact which Herr Alt seems to gloss over in his efforts to attack senate democrats for their questioning techniques. The fact that we know so much about Scalia's political leanings is a direct result of the very public persona he cultivates. This recusal is entirely his fault.
posted by amauck at 12:06 PM on October 22, 2003

Why am I suspicious that this "sudden" taboo on asking prospective judges about their positions is more of a polite fiction than an unwritten law? It only encourages the nomination of incompetant stealth candidates. We end up with such absurd situations as Clarence Thomas claiming he got all the way through law school and well into professional life without ever discussing the abortion issue with anyone. Anything is (and should be) fair game in a confirmation hearing.

Re: Scalia. Maybe I'm getting too cynical, but I can't help thinking that he recused himself because he expects to be nominated for CJ when Rehnquist retires (quid pro quo for Florida) and doesn't wanna be grilled on this devisive issue.
posted by RavinDave at 12:28 PM on October 22, 2003

"Questions on potential cases" and "very specific questions about legal issues" and "targeted questions" be damned. Where were the just and proper recusals in bona-fide cases of conflict of interest in, oh, say minor cases like the 2000 Florida presidential election recount? As Eric Alterman asks:

Did it matter that Clarence Thomas was appointed by Bush's father and had a wife working with Bush's transition team? What of the fact that Antonin Scalia's sons worked in the same firm with Bush's lawyers? What of the comments made by Justice Sandra Day O'Connor at a Washington dinner party on Election Day, complaining of the Gore team's tactics, and informing partygoers that Gore's then-perceived victory was "terrible" because, as her husband helpfully explained, she had hoped to retired from the court and did not want Al Gore appointing her succesor. Might any of these justices have considered recusing themselves, merely for the sake of propriety?

And my oh my, how very timely of Robert Alt to start worrying about the confirmation process now -- specifically about this oh so painful and downright dangerous questioning of Bush's nominees. But where were he and the rest of the "we MUST move these judicial nominess along" Republican partisans a few years ago on the issue?

In 1997, former Senate Judiciary Committee chair Orrin Hatch, who now protests Democratic Senators' suggestions that the judicial ideology and philosophy of nominees be carefully reviewed, emphasized the need for Senators to "ascertain the jurisprudential views a nominee will bring to the bench" through "extensive" questioning and investigation, with "no set time" to complete the process. "No set time" for some nominees meant that they waited years without even being granted a hearing by the Judiciary Committee. Many others were prevented from coming before the Senate.

Then-Senate Majority Leader Trent Lott was quite blunt in 1998. "Should we take our time on these federal judges?" Lott asked rhetorically. "Yes. Do I have any apologies? Only one: I probably moved too many already."

Ashcroft himself routinely blocked nominations, reportedly helping to delay the confirmation of William Fletcher to the 9th Circuit Court of Appeals for over three years and the confirmation of Richard Paez to the same court for more than four years. Among his other targets were the nominations of Margaret Morrow to the federal district court, Margaret McKeown to the Ninth Circuit Court of Appeals, and Sonia Sotomayor for the Second Circuit Court of Appeals.

Although Senators Hatch, Ashcroft and others claimed that they were seeking to avoid liberal "activist" judges nominated by President Clinton, these assertions do not withstand scrutiny. Academic studies and reviews by legal scholars have concluded that Clinton's appointees were exceptionally well-qualified and were generally less liberal than those of other Democratic presidents. In fact, they most closely resembled the judicial appointments made by President Gerald Ford. Nevertheless, even these centrist judges, primarily those nominated to the courts of appeals, ran into the Senate slowdown."
posted by fold_and_mutilate at 7:45 PM on October 22, 2003

What a non-issue. Show me an example of a federal judge recusing himself from a case based on an answer he or she gave in a Senate confirmation hearing and maybe this is a live issue. I highly doubt such an example exists though.

As for Scalia recusing himself from the pledge case, it is a bit surprising, given how strongly he obviously feels about the issue. On the other hand, in the minds of judges and lawyers, it does look pretty bad for a judge to declare how he would rule in a pending case before he has actually seen the record. A basic premise of the US legal system is that facts are a crucial element in any case, and cases can only be properly decided after examining the specific facts of the particular case before you. Part of this goes back to the Constitution itself, which says that the courts can only decide "Cases or Controversies" -- they aren't permitted to simply declare the law outside the context of a particular case with a particular fact-pattern.

That's the idealistic explanation. The cynical explanation is that he knows the case is a win-win for conservatives no matter what happens (if the ruling is reversed, conservatives get what they want, if it is upheld, it becomes a rallying cry among the conservative base for a second Bush term).
posted by boltman at 10:23 PM on October 22, 2003