L.A. Times: Up or Down Votes for All
Today’s L.A. Times has two editorials on Sandra Day O’Connor and the upcoming judicial confirmation battles. The first editorial is a rambling puff-piece, which exaggerates O’Connor’ moderating influence on the court by claiming she was in the majority of all of the Court’s 5-4 decision. That will come as news to the po’ folk in New London, CT who just lost their properties in Kelo. [UPDATE: Actually, as Patterico has subsequently determined, it's much worse than that, and not necessarily by accident.]
The second editorial is much better, and in my opinion, about as close to perfect as you’ll ever see in an unsigned L.A. Times editorial. It makes four basic points, all of which I believe are correct in theory if not 100% realistic in practice: (1) the President and the Senators alike are entitled to take judicial philosophy into account, (2) good judges adhere to their judicial philosphy even when it does not jibe with their political ideology, (3) Senators should be allowed to ask questions about how a judge will rule on a specific case [UPDATE: make that specific issues, not actual "cases" between specific parties who are actually suing each other - at least, that's what I think the Times means] and expect an answer, and (4) nobody should be filibustered. Lest you think that some band of Republicans has overtaken Times Mirror Square, they do acknowledge that from their standpoint, it would be great if President Bush appointed a “moderate” or two instead of two solid conservatives, even while acknowledging that given the make-up of the Presidency and the Senate, they are in no position to insist on such accommodations. Then, we get to the “almost” part of their almost-perfect editorial:
Well, take that back. We do insist on one thing: Bush should not nominate Justice Clarence Thomas for chief justice. Thomas purposely misled the Senate at his original confirmation hearing 14 years ago, insisting he had no opinion on the hot-button Roe vs. Wade decision. Since then he has repeatedly shown his deep opposition to Roe. For the Senate to confirm him as chief justice now would say to the world that the contempt Thomas showed for that institution was fully justified.
I agree. Rather than nominate the guy who, 14 years ago, said what he needed to say to avoid getting borked, maybe President Bush should instead nominate the guy who followed all four of the Times’s suggestions to a tee and did get borked. By confirming him now, the Senate can prove once and for all that while the contempt Thomas showed for their institution may have been fully justified 14 years ago, it isn’t anymore. Robert Bork for Chief Justice! Oh yeah, and Ann Coulter, Janice Rogers Brown or Priscilla Owen for the woman’s slot that opened up earlier this week.
UPDATE: Spoons thinks I’m all wet.
July 2nd, 2005 at 10:36 pm
Good catch on Kelo. Another letter to Ms. Gold . . .
July 2nd, 2005 at 10:40 pm
There are a few others. I am going to do some research and do a comprehensive post before sending off my letter. My guess: there are about five 5-4 decisions where O’Connor dissented.
July 2nd, 2005 at 11:29 pm
Okay, I’ve done the research — meaning I found someone else’s research. The results are really pathetic. This is going to prove to be a major embarrassment for The Times. I’ll have a post up soon.
July 2nd, 2005 at 11:59 pm
[...] (Thanks to Xrlq for inspiring this post.) [...]
July 3rd, 2005 at 8:47 am
It always comes down to their beloved abortion law, doesn’t it? I mean, it’s precious little Roe-Roe. Blech. These people make ne sick. They have no other issue it seems sometimes.
July 3rd, 2005 at 8:52 am
And why are these people talking about the need for balanced representation and consensus building on the Court? I thought that is what the legislative branch was for.
http://news.bbc.co.uk/2/hi/americas/4644711.stm
July 3rd, 2005 at 1:38 pm
How about Phyllis Schafly? Can’t get more conservative that that!
“Mrs. Schlafly is a lawyer and served as a member of the Commission on the Bicentennial of the U.S. Constitution, 1985-1991, appointed by President Reagan. She has testified before more than 50 Congressional and State Legislative committees on constitutional, national defense, and family issues.
Mrs. Schlafly is a Phi Beta Kappa graduate of Washington University, received her J.D. from Washington University Law School, and received her Master’s in Political Science from Harvard University.”
July 3rd, 2005 at 9:52 pm
You’re at least the third person to suggest Ann Coulter be nominated that I’ve seen this weekend. Is this a secret conspiracy to make liberals’ heads explode, or what? (Not just liberals, either. Many conservative and libertarian heads would be in danger as well.)
July 3rd, 2005 at 10:03 pm
That’s basically it. She’d never get confirmed, of course, but whoever got nominated in her place afterward would automatically be seen as a moderate.
July 7th, 2005 at 1:20 pm
Egad! Ann Coulter? I knew you were a conservative, but never figured you for an emotionally imbalanced xenophobic racist wingnut (or someone who would support one).
July 7th, 2005 at 2:05 pm
See my prior comment. My recommendation of Ann Coulter as a Supreme Court Justice was not a serious proposal but a Rove-tactic aimed at making liberals’ heads explode. It seems to have worked in your case, eh?
July 7th, 2005 at 8:15 pm
“Senators should be allowed to ask questions about how a judge will rule on a specific case and expect an answer”
Huh? How can you possibly think this is correct? To answer such a question would be a blatant breach of a judge’s ethics. I’m not aware of any nominee who has ever answered such a question. In fact, in the past, Senators have expressly told nominees NOT to answer any questions that they thought would cross the line into commenting on how they would rule on specific cases.
I’m positively stunned, X, that you would not understand that.
July 7th, 2005 at 8:38 pm
I do understand the rule, I just think that to the extent “specific cases” means specific issues (it doesn’t generally, but it does in this context), it’s crap. Calling shit “ice cream” does not make it so, and calling it “ethics” doesn’t, either. If “ethics” dictate that you should hide the ball to help preserve the fiction that only the other two political branches are “the political branches,” and that the imperial judiciary is something profoundly superior to that, then with apologies to Dickens, “judicial ethics” is a ass.
Then again, you’re the trial lawyer who deals with judges on a daily basis, not me. Maybe there is some profound justification for this “ethical” rule that I just don’t get. If there is a legitimate argument to be made as to why it should be be considered unethical for a judge to say what he thinks the law is on a topic he’s asked about other than while ruling on a case that raises that issue, I don’t doubt your ability to make it. So let’s hear it. Bonus points if you can explain why it’s even more “ethical” to lie outright and deny having thought about the issue at all, as Clarence Thomas did with respect to Roe.
July 8th, 2005 at 4:05 pm
Many of the canons of judicial ethics prohibit judges from making public comments that indicate how they will rule on issues or cases that they may be called to decide on. There are very good reasons for this. If a judge is permitted to say how he will rule on an issue ahead of time, then how can a litigant before him be said to have a fair and impartial judge? Judges are supposed to decide cases based on the law and facts presented to them in that case. If they are willing to decide those ahead of time, they’re not doing their job — and they’re violating their oaths of office. Further, the judiciary is supposed to be an independant, co-equal branch. To the extent that the legislature — or the executive, for that matter — extracts commitments from a judge as to how they’ll rule on an issue, they’re violating the constitutional separation of powers. Note that it’s just as improper for a President to ask such a question as for a Senator to do so. And a judge who would answer such a question is unfit for office.
Questions about general judicial philosophy are reasonable. Questions about specific issues are not.
July 8th, 2005 at 4:36 pm
The same way the second litigant to argue a given issue (or a closely related one) before the same judge can be said to have had a fair and impartial judge. Shall we now ask all sitting judges to recuse themselves from every case that raises an issue of law they have ruled on previously?
Besides, I thoroughly reject the notion that refusing to disclose one’s biases makes a person any less biased. Journalists play the same game, too, and, like judges, also flatter themselves by calling this self-serving, institutional whitewash an “ethical” rule. It ain’t. It doesn’t do a damned thing to make a judges, a journalist, or anyone else one iota more fair or one iota less biased than he is already. All it does is help sweep their biases under the rug until it’s too late to do anything about it.
But perhaps I’m just looking at this the wrong way. Maybe a little bias-repression early in a public servant’s career is just what the doctor ordered. In that case, why stop with an “ethical” judiciary when we could have an ethical President and an ethical Congressmen, too? From now on, if anyone runs for office, let them discuss their philosophies only in the most general terms (“I like freedom,” for example), with no references to any real bills actually pending in Congress, or even to any specific hypothetical bills that a candidate for Congress might someday have to vote or against, or which the next President might actually have to sign or veto. I’m sure I can count on John McCain and Russ Feingold to support this much-needed reform. Can I count on yours, too?
July 8th, 2005 at 10:41 pm
I’m not sure it’s productive to argue about whether it’s “real” ethics. Most of journalism’s ideas of ethics are reprehensible — but they’re still ethics. With judges, you may disagree with their ethics, but it’s kind of hard to argue that these rules don’t exist. They’ve been around for a very long time.
The problem with the way you want us to go is that it would remove any possibility of ever having the judicial branch be anything more than another political branch. Granted, the Court has been much politicized over the past couple decades, but this is a Bad Thing. What you seem to want to do is accellerate the process. If you want empirical evidence in support, consider that it’s only in the past decade or two that we’ve had a political party that thinks it’s entitled to answers to these sorts of questions. Would you deny that the process of selecting judges has gotten terribly — even catasrophically broken in that period? The two things are two sides of the same coin.
If we’re going to have an independent judiciary, we simply cannot let judges answer these sorts of questions. And if we’re not going to have an independent judiciary, there’s really no point in having one at all. The Supreme Court would become simply an administrative agency of the Senate.
July 9th, 2005 at 12:02 am
I don’t see it as the same thing. You are asking a judge to opine on an issue in general, not based on any particular case or facts or hearings or trials or however appellate courts decide. The judge’s real-life decisions, though, are never made in that kind of vaccuum. It’s supposed to be a matter of the merits of the particular case.
But (speaking strictly as a layman) there’s another angle, I think. SCOTUS (and other appellate courts) often simply refuse to hear a given appeal if the issue in question has already been decided at the appellate level or higher; plus, the parties to the case usually know it’s not worth appealing. There’s no point in appealing the same sort of case over and over if the courts have already clearly ruled on a particular matter of law. How an individual judge might vote would at that point be of little consequence.
The only time I can see it being an issue is if a newly-constituted court (like after O’Connor & Rehnquist are replaced) decides (by a vote of the judges, as I understand it) to re-address a previously-decided issue. If that were to happen, then a new/different decision might be arrived at by the whole of the new court… but then you’re back to the point where that court will not be taking that particular type of case again.
There seems to me to be no cause to require a nominee to answer a question that will later force him to recuse himself should that one issue come up one more time.
I hope that made sense… I’m not a lawyer, so who knows? (Maybe that increases my odds of making sense….)
July 9th, 2005 at 8:08 am
Shall we now ask all sitting judges to recuse themselves from every case that raises an issue of law they have ruled on previously?
Speaking purely from a normative perspective, the ethical rules distinguish between opinions rendered on vs. off the bench. Beldar has a good post about that here. He concludes that “the distinction between opinions stated on and off the bench is very central to the entire history of caselaw on recusal and disqualification.”
I’m going to e-mail him and see if he wants in on this discussion.
July 9th, 2005 at 9:05 am
Spoons, your point is taken about real vs. fake ethics. In my idiolect, the word “ethics” takes on a moral connotation, but the dictionary disagrees as to Definition 2, which relates to rules of a profession (not necessarily good ones, as I’d argue this particular rule isn’t).
Close. What I want us to do is make the best of a bad situation by admitting that this possibility was removed a long time ago, if it was ever there in the first place. I’m open to any suggestions as to how to make the court actually be less political in the future, but I’m not the least bit interested in rules aimed merely at making it appear less political.
I’m agnostic as to whether the process of selecting judges has gotten worse during the past two decades, or whether because of our age, we’re simply more aware of the crap that was going on during that period and blissfully ignorant of what went on in earlier eras. I think FDR’s court-packing threats were a much greater threat to the independence of the judiciary than anything that’s happened in your lifetime or mine, and also far more effective in that regard. There, one President singlehandedly reversed the “independent” judiciary to constitutionalize his unconstitutional agenda. By contrast, when seven out of nine ethical, independent, ostensibly apolitical judges made up a “consitutional” right to abortion in 1973, six appointments by three Republican Presidents over the next 20 years were only able to net two votes to overturn it.
As to the make-up of the court itself, which is far more important to me than the sausage-making process that brought it about, I think that for all its faults, our Supreme Court is merely politicized enough to uphold Roe, not politicized enough to come up with such a bad ruling on its own, as the Roe court itself was. I think our current court is a hell of a lot less politicized and a lot more fair than the 100% ethical courts that brought us Dred Scott v. Sandford, The Slaughterhouse Cases, Plessy v. Ferguson, Lochner v. New York, arguably Marbury v. Madison, or, for that matter, almost anything the Warren Court ruled on.
July 10th, 2005 at 12:13 pm
Prejudging
Volokh gives contrary arguments a little too much credit, in my view, but nonetheless pens a good answer explaining why judges should NOT answer questions about their views on specific issues during confirmation process. For…
July 10th, 2005 at 4:44 pm
I saw the Volokh link and rushed over here to post it, but I see Spoons has semi-beat me to it with a pingback.
Anyway, here it is:
http://volokh.com/posts/1121009140.shtml