Bench Memos

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Re: the case of Alt v. Franck


Matt Franck says that a nominee should be asked questions about specific issues and even about particular decided cases. Robert Alt says not. He also says that a nominee could not answer them without violating canons of judicial conduct. (No doubt as to where Senator Schumer comes out on this one.) I do not know much about the judicial canons. But some obvious questions about interpreting them come to mind. Does prohibited “public comment” include answers elicited by Senators’ questions at confirmation hearings, where the “comments” pertain to legal principles and norms, and not to particular lawsuits? What if the nominee prefaces each answer with a caveat: “Of course, Senator, I cannot say for sure how I would rule in such a case, for that would depend upon particulars about which I now know nothing. But as to the general question of whether the unborn are ‘persons’ within the meaning of the Fourteenth Amendment (for example), I can say this, because that is a metaphysical question which does not depend upon the vagaries of litigation, any more than the question of whether black folks and white folks are all persons possessed of equal dignity depends upon the litigants”. What if a Senator asked only about opinions (and other writings) authored by the nominee? “Why did you cite Justice Scalia’s concurring opinion in that case, as opposed to the contrary assertion in the majority opinion? You distinguished that line of cases as inapposite? as undermined by later cases? What did you mean?” Should the canons be understood to mean that the nominee must censor himself here, too, if there is some chance that answering the questions will amount to “public comment” about possible litigation?

Often enough the meaning of a law is as uncertain as the judicial canons may be. In such instances — whether it be a law or a an ethical canon — a good judge will turn to the values or policies which underlie them. In this case, those values would be judicial objectivity and impartiality. These judicial virtues refer, first and foremost, to the parties and facts of particular lawsuits. Every litigant is entitled to expect that the judge in his or her case will not play personal favorites, that the parties stand equal in the court’s eyes, that the case has not been pre-judged. This part of the judicial ethic also requires that the judge not hold biases or prejudices against the ethnic or racial or religious group of which the litigant is a member. Every litigant is also entitled to a judge who has not decided (somehow) in advance of trial what the truth about contested facts is. Otherwise, the trial would be a waste. And a litigant is entitled to have the relevant law — and not the judge’s idea of what the law ought to be — applied to the case at hand.

Beyond these essential virtues lies a different sort of “pre-judgment”, if you will: the nominee’s judgments of what is sound (valid, true) thinking on larger questions of law and interpretation and morality (“equality”, “fairness” “moral turpitude” “unjust discrimination”; there are many, many more examples.) No litigant is entitled to a judge without views, even strong ones, on these matters. I think Matt Franck is focused on this terrain. I think he is right that a nominee may be asked about how the nominee would navigate it. If the nominee’s honest answer is, “I don’t know” or “I have no firm belief on that”, so be it. If the nominee’s honest answer is: “I believe that I should not say, because it might breach judicial ethics for me to answer you directly”, so be it. Of course, the money question may be whether a pattern of such answers would suffice for the conscientious Senator to withhold consent to such a nominee’s appointment.


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