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Judicial Catch-22.


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Last week, the United States Supreme Court agreed to determine whether voluntary recitation of “under God” as found in the Pledge of Allegiance is constitutional. The Court will have to do so without the assistance of Justice Scalia, who recused himself from the matter. While there has been much speculation about how Scalia’s absence will impact that particular case, his recusal has broader implications–not just for the separation of church and state–but for all judicial nominations pending before the Senate.

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Justice Scalia did not articulate why he recused himself from the pledge case, but it is widely understood that he did so because of a speech he delivered in Fredericksburg, Virginia in January. In his speech commemorating the 226th anniversary of the Virginia Statute for Religious Freedom, Scalia suggested that the Ninth Circuit’s pledge opinion was a prime example of the courts’ excessive zeal in keeping God from government.

While judges are permitted to speak at events, there are special limits placed on what they may say by the judicial codes of ethics and by recusal statutes. For example, the code of conduct for U.S. judges admonishes judges to “avoid public comment on the merits of a pending or impending action”–a broad prohibition that has been interpreted as prohibiting judges from commenting on any matter which may in the future come before their respective courts. The recusal statute enacted by Congress states that a judge or justice “shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned,” which it specifically defines to include cases where the judge has expressed an opinion concerning the merits of the particular case in controversy. It is based upon these requirements that Scalia chose to disqualify himself.

Ordinarily, the recusal and judicial-conduct requirements are not terribly onerous. After all, judges may decline to speak at events, or may restrict their comments to issues not likely to come before their courts–a solution which at worst leads to lofty, theoretical speeches offered by judges at rubber-chicken affairs. There is one notable exception to the relatively gentle burden of these rules: judicial-confirmation hearings.

During recent confirmation hearings, Senate Democrats have taken to asking candidates very specific questions about legal issues which are likely to come before their prospective courts. Such questions have presented the nominees with a Catch-22: If the nominees answer the questions, then they risk running afoul of the codes of judicial ethics, and may be required to take no part in cases raising that issue coming before the court. If, however, the nominees choose to point out that judicial cannons prohibit them from answering the question, then they face rejection by Senate Democrats for not being sufficiently forthcoming.

Miguel Estrada’s failed nomination demonstrates just how pernicious this recusal Catch-22 can be. During his marathon Senate Judiciary Committee hearing, Estrada was asked numerous questions that were almost certain to come before the D.C. Circuit Court to which he was nominated. These were not general questions intended to evoke a sense of the nominee’s jurisprudence, but rather targeted questions designed to elicit how the nominee would decide particular cases. For example, Senator Leahy asked whether Estrada could think of any use of race or gender-based affirmative action “that would pass the strict scrutiny test that was articulated . . . in the Adarand case[.]” If Mr. Estrada answered this question, he could have been precluded from hearing any case involving racial preferences in contracting. But Sen. Patrick Leahy (D., Vt.) was not alone in asking inappropriate questions. Sen. Herb Kohl (D., Wis.) asked Estrada specific questions about protective orders in product-liability litigation, including what test should be applied. And Sen. Feinstein (D., Calif.) asked “[t]o what extent do you believe that Congress can regulate in the area of dangerous firearms, particularly when those weapons travel in interstate commerce, when they affect commerce and tourism, and when they have such a devastating impact on the children of this country?” In each case, Estrada expressed his hesitancy to answer based on his understanding of the codes of ethics. Rather than respect his legitimate objection, the Democrats accused Estrada of “failing to fill out his job application.” Not a bad system if you are an obstructionist in the Senate: Heads we win–tails you lose.

Of course, some may object that the recusal requirements are discretionary, and that judges fail to strictly apply them. For example, Judge Harry Pregerson of the Ninth Circuit recently offered the press his opinion regarding the outcome in the California punchcard ballot case while the issue was still pending–an action which appears to be a clear violation of the canons of judicial conduct. But even notable examples of judges refusing to police themselves should not be used as a basis to encourage still more judges or potential judges to violate the requirements not to comment on matters likely to come before the court. Indeed, Justice Scalia’s adherence to the requirements in one of the most highly anticipated cases of the year highlights the importance of the rules, and demonstrates that judges of character will apply the rules even when compliance may impact a major case.

The question of what questions a nominee may answer is all the more salient because, Justice Janice Rogers Brown is scheduled to appear before the Judiciary Committee Wednesday regarding her nomination to sit on the D.C. Circuit, the very court to which Mr. Estrada was nominated. Justice Scalia’s recusal should weigh heavily on that proceeding. 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.

Robert D. Alt is a fellow in constitutional studies and jurisprudence for the John M. Ashbrook Center at Ashland University.



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