OT: Judicial Selection Too Political

[kcchief19]

Scalia: Judicial Selection Too Political
I never thought I would say this, but I agree with everything Antonin Scalia just said. There has been so much talk about the vacancies on the nation's courts, but the problems come down to two reasons: presidents are appointing crappy nominees and the Senate is dragging its feet on party lines.

Clinton had problems filling vacancies because he put up some bad nominees and the Republicans fought every nominee he put up, good or bad. Same thing with Bush, although he has had much more of a political "litmus" test than Clinton did. All this debate about appointing Miguel Estrada to the DC court is amazing. The guy has never been a justice in his life and has refused to answer questions about his judicial opinions. And yet Orrin Hatch claims the guy is on the "short list" for the Supreme Court. How can a guy who has never been on the bench be on ANY list for a major federal court?

Sure, our sue-happy society is partly to blame for the judicial log jam in this country, but the politicalization of our courts hasn't been this great in 70 years.

[Blackadar]

Slate had this on Estrada. Again, it shows that the Republicans are hypocritical (as usual):

Like gangsters taking the Fifth, nominees for federal judgeships now have their reason for staying mum down to a mantra. Repeat after me: "My view of the judicial function, Senator, does not allow me to answer that question." Miguel Estrada, President Bush's nominee for the D.C. Circuit Court of Appeals, used variations on that one many times in refusing to express any opinion on any important legal topic during Judiciary Committee hearings last fall. Democrats are now trying to block the Estrada nomination with a filibuster.

Estrada's "view of the judicial function" is shared by President Bush, congressional Republicans, and conservative media voices hoarse with rage that Democratic senators want to know what someone thinks before making him or her a judge. The Estrada view is that judges should not prejudge the issues that will come before them. As Estrada amplified in his testimony, "I'm very firmly of the view that although we all have views on a number of subjects from A to Z, the job of a judge is to subconsciously put that aside and look at each case … with an open mind."


Obviously, Estrada's real reason for evasiveness is the fear that if some senators knew what his views are, they would vote against him. However, this kind of high-minded bluster is a powerful weapon in the ongoing judicial wars. Over the past couple of decades, talk like this has intimidated many a senator who aspires to a reputation for thoughtfulness. And it does sound swell. Until you think about it.

Potential judges should not reveal their views on legal issues because a judge should have an open mind? Hiding your views doesn't make them go away. If the problem is judges having views on judicial topics, rather than judges expressing those views, then allowing people to become judges without revealing their views is a solution that doesn't address the problem. And if the problem is judges who fail to put their previous views aside, rather than judges having such views to begin with, then allowing judicial nominees to hide those views until it's too late is still a solution that is logically unrelated to the problem.

So, Estrada's Rule of Silence does not solve the problem. And the supposed problem—of "prejudging"—makes no sense either. To see why, consider—or reconsider—Justice Clarence Thomas. In his 1991 confirmation hearings, Thomas testified that he had no "personal opinion" about Roe v. Wade, probably the most controversial Supreme Court decision of the 20th century. In 1992, Justice Thomas joined in a minority opinion calling for Roe to be overturned. By 2000 he was writing that the Roe decision was "grievously wrong" and "illegitimate" and part of "a particularly virulent strain of constitutional exegesis" and generally not something he cared for the least little bit.

This does not prove that Thomas was lying under oath in claiming that he hadn't prejudged Roe in 1991 (though no reasonable person could doubt that). It does prove that Thomas had prejudged Roe in 1992. But this is a point that Justice Thomas needn't bother to lie about since no one objects. It's perfectly OK for a sitting judged to have and express views about an issue that comes before his or her court. That is his job.

In fact it's inevitable that anyone who has been an appellate judge for a while will have published opinions that touch on many of the issues he or she must decide in the future. There is not even an expectation of open-mindedness. Although a willingness to reconsider your own assumptions is regarded as admirable, no one is accused of prejudging a case just for ruling the same way this year as last year. Quite the opposite: Intellectual consistency is the hallmark of a fine legal mind. And following precedent is a sign of judicial professionalism.

Most legal rulings come from judges who have been on the bench for a while. If that is not a problem, why is it a problem if they have thought about and reached conclusions on some important legal issues before they join the bench? The answer is that it is not a problem. It ought to be a problem if a potential judge has not thought about important legal issues and has no views on them. But instead, the problem is how to keep a judgeship candidate's opinions hidden until he or she is safely confirmed for a lifetime appointment, and the phony issue of "prejudging" is a strategy for doing that.

Judgeship nominations bring out the hypocrite in politicians of both parties, but the Republican hypocrisy here is especially impressive. When Bill Clinton was appointing judges, the senior Judiciary Committee Republican, Sen. Orrin Hatch, called for "more diligent and extensive … questioning of nominees' jurisprudential views." Now Hatch says Democrats have no right to demand any such thing. President Bush fired the American Bar Association as official auditor of judicial nominations because the ABA gave some Republican nominees a lousy grade. Now Hatch cites the ABA's judgment as "the gold standard" because it unofficially gave Estrada a high grade.

The seat Republicans want to give Estrada is only open because Republicans successfully blocked a Clinton nominee. Two Clinton nominations to the D.C. Circuit were blocked because Republicans said the circuit had too many judges already. Now Bush has sent nominations for both those seats. Hatch and others accuse Democrats of being anti-Hispanic for opposing Estrada. With 42 circuit court vacancies to fill, Estrada is the only Hispanic Bush has nominated. Clinton nominated 11, three of whom the Republicans blocked.

I could go on and on. Which is just what Senate Democrats are doing.

[Fritz]

blackadar, perhaps you need a more balanced source.

[Jon]

Like Scalia is a neutral source. His idea that the constitution means the same thing now as it did when the framers first wrote it and they intended the meaning to never change is inherently a political viewpoint.

Let's face it, judges are creatures of a political system. Their method of selection requires that they be appointed by a political person and confirmed by a political body. And, if we take a look throughout history, presidents of both parties have selected judges at all levels for political reasons. And the choices tend to be politicians, either publicly or involved privately. I had a professor who once said (and I don't remember where he said that he stole it from) that the idea that teh judicial mind is "neutral" is absurd because politicians select judges who are politicians who happen to wear black robes.

By the same token, I thing the Democrats request for DOJ memos is absurd. However, Estrada should be questioned extensively on any prior opinion or public statement that he made and he should have the courage to stand by them and defend them.

Scalia did, and he was confirmed. Rehnquist did, and he was confirmed. Bork, who probably stood by his opinions teh most, did not, and he was not confirmed. But at least he didn't lie and say that he would magically become "objective" and able to analyze a case simply by what the law says.

Anyway, I'll stop babbling.

[JonInMiddleGA]

Originally posted by Jon
However, Estrada should be questioned extensively on any prior opinion or public statement that he made and he should have the courage to stand by them and defend them.

In principle at the very least, I agree with what you said there. Hope you don't mind if I borrow it for a minute

With the above in mind, could somebody who's been following the Estrada confirmation closely bring me up to speed on something?

Has he been dodging prior statements / opinions that are being raised now or is he declining to answer questions about issues he hasn't ruled on/commented upon publically? Or both? Or neither?

This is one controversy that, even though I probably should be, I haven't been following closely (hardly at all to be honest) and a Cliff Notes version would be awfully handy right now.

Thanks in advance,
Jon

[Blackadar]

Originally posted by Fritz
blackadar, perhaps you need a more balanced source.

My source seems balanced to me.

[kcchief19]

Bad nominees are bad nominees, regardless of their political persuassions. Bork had problems that went well beyond his ultra conservative political views. His role in Watergate and the Saturday Night Massacre played a bigger role in his rejection than his political views, but he's political views were the substance of his confirmation hearings. Estrada is just a bad nominee, and his refusal to answer certain questions is another nail in the coffin.

That being said, Bush is refusing to appoint qualified jurist for the bench because he doesn't want to appoint anyone who has made decisions that they will have to answer for. He wants to appoint people with no judicial history, and therefor nothing to explain. They make make political sense, but it doesn't make for good law.

[Jon]

Bork's political views were his judicial views. He wanted Roe v. Wade overturned and said that Brown v. Board of Education was a bad decision. He was called to task on that and he actually stood by his legal philosophy.

My point is that legal positions are political positions. One's method of interpreting law is based in one's politics. Now, if I'm ever appointed to the bench, this is definately going to bite me in the butt.

Anyway, I agree with your point about Bush. He doesn't want to appoint people who have anything to explain.

[BishopMVP]

Although I think Bork was a terrible nominee, I actually agree that Brown vs. Board of Education was a bad decision. I had to argue for the Topeka BOE in Con Law last year, and by the end I thought it was the side that should have won. Topeka was already desegregating, and there was judicial precedent on both sides, but at the Supreme Court level, mostly for B.O.E. That decision was the most political in the court history.

Of course, the other case I argued was the side of US vs. Korematsu (Japanese Internment) so of course I lost both badly, but it was a great course.

[astralhaze]

Originally posted by Fritz
blackadar, perhaps you need a more balanced source.

Balanced sources exist only in the minds of journalists and editors. There is no such thing in the real world.