Bench Memos

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Questions and Judicial Ethics


Reacting to my article today, a number of correspondents raise the judicial ethics points addressed by Mark in his piece, and also being discussed here on Bench Memos by Ramesh, Robert, Gerry and perhaps others. I must say that I just do not see this as a much of an obstruction to asking nominees about their views on prior precedents.

The objection based on judicial codes of conduct I find particularly unpersuasive – and yet another example of how lawyers seem to think they have license to regulate the country in the name of regulating themselves. I am especially sensitive to this from long service as a prosecutor, watching the defense bar use the codes of professional conduct that apply to the legal profession to try to thwart the executive branch’s constitutional law enforcement mission – an agenda pursued with no small amount of success (which should not be surprising given that judges who decide such claims are also lawyers and similarly figure lawyers should run the world).

The professional code, for example, is sometimes construed to hold that a lawyer who deals with an unrepresented party who is adverse in interest is ethically obligated to do nothing more than advise that party to obtain counsel (DR 7-104(A)(2)); and that when dealing with a represented party, a lawyer may not properly interview that party absent consent of counsel (DR 7-104(A)(1)). Of course, if those interpretations were applied to prosecutors, it would mean that criminal suspects could not be interviewed or interrogated even under circumstances where such questioning is perfectly permissible under the Constitution – in addition to being socially desirable. It would mean, implicitly, that such codes were capable of nullifying constitutional powers.

To the extent code-based regulations conflict with constitutional prerogatives (or even statutory duties), those code-based regulations must give way. The senate’s advice and consent function is a constitutional duty. It can’t be trumped by a judicial code. Period. And there’s no reason to think there’s any real danger of that anyway, because the code and the senate’s function can easily live in harmony.

Of course I don’t take issue with the notion that judges have to remain impartial. But that simply means they have to have an open mind about applying the law as they understand it to the facts – meaning, among other things, a willingness to change their minds or alter their prior views if there are persuasive grounds to do so. Giving a view about the legal reasoning of a precedent does not render one disqualifiable in a future litigation in which that precedent arises again. If it did, judges who have previously ruled on questions that recur would be obligated to recuse themselves lest their impartiality be questioned.

A nominee who told us that, for example, he thought Roe was poorly reasoned would not be telling us anything more than what the Supreme Court itself has said. Moreover, it would not bind the nominee to take any particular position if a case arose in which the Roe precedent was relevant.

Further, it cannot be the case that it is proper to ask a nominee whether, as a matter of general philosophy, he thinks a judge is free, under the guise of shaping the contours of the so-called right to privacy, to find new rights not enumerated in the Constitution, but that it is somehow improper to ask him what he thinks of the reasoning of a prior case in which a court, under the guise of shaping the contours of the so-called right to privacy, purported to find a new right not enumerated in the Constitution. That would elevate form over substance and reduce an important process – one in which Americans have a vital interest – to a game.

This society did not have to navigate itself to a place where, effectively, the courts are the final word on any policy and any law in which they choose to be the final word. Who would have thought, even two years ago, that the military, taking enemy prisoners in the middle of a shooting war, would have to worry about being hauled into court to explain themselves? We now have precisely that worry for no better reason than that the courts said so. What assurance do we have that they will not be micro-managing bombing targets tomorrow? Or that they won’t say the Constitution protects polygamy, private heroin consumption, or euthanizing mentally retarded infants? None. No one knows what they will say tomorrow, but we do know that once they say it our society has decided that that’s the last word – no matter how unpopular or unreasonable it may be.

We’ve made them a super legislature. It’s not the way I would have designed it, but that’s the way it is. OK, fine. But then don’t tell me those seeking the gig should not be vetted just like everybody else who aspires to a policy-making position gets vetted. If they are going to rule us, I want to know more than where they were Summa Cum, whether they’ve paid all their parking tickets, and when they last eye-balled the nanny’s green card. I also want to hear more than a bunch of vague generalities about their worldview – because unlike other legislators, I don’t get to vote this one out of office if I’m misled. I want to know what their views are. You can’t ask them about pending cases or future cases because that undermines the integrity of the judiciary? Fair enough. But you can’t tell me they can’t be asked about prior cases either.


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