Anyway, here it is:

http://volokh.com/posts/1121009140.shtml

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…

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.

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.

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.

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.

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.

Shall we now ask all sitting judges to recuse themselves from every case that raises an issue of law they have ruled on previously?

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….)

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.

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?

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?

Questions about general judicial philosophy are reasonable. Questions about specific issues are not.

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.

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.