Robert Alt, in “Thin Law Line” (NRO, Oct. 21), argues that the canon of judicial ethics, which prompted Justice Scalia to recuse himself from the Newdow case on the Pledge of Allegiance, should also govern the questions that senators address to judicial nominees in the confirmation process. In short, if Justice Scalia is so scrupulous as to disqualify himself for a passing remark on the Ninth Circuit’s ruling, then it follows (says Alt) that nominees like Miguel Estrada and Janice Rogers Brown should be entitled not to answer tough questions about legal issues likely to come before the courts they may serve on. Otherwise, they might run afoul of the requirements of judicial ethics before they even become judges, and would (if they too are as scrupulous as Scalia is) be duty-bound to disqualify themselves from precisely those cases the senators were most interested in. A terrible Catch-22, or so argues Alt.
The trouble with this argument is that it permits the requirements of judicial ethics–and even a terribly broad reading of them–to trump the constitutional obligation of senators to inform themselves adequately about the kinds of judges they are being asked to confirm.
Let’s take the example of Justice Scalia first, since it may well be said that he was over-scrupulous in recusing himself from the Newdow case. On January 12–Religious Freedom Day–Scalia spoke at a Fredericksburg, Virginia event sponsored by the Knights of Columbus. Remarking generally (and correctly) on the misguided trend of the Supreme Court’s jurisprudence under the Establishment Clause, he said that some of the Court’s past rulings provided “plausible support” for the Ninth Circuit’s ruling on the pledge. A little later, Scalia ad-libbed, in response to a protester’s sign, that “under God” could be taken out of the pledge by a democratic choice of the people and their representatives, suggesting that it was no business of judges to do so on a constitutional pretext.
At the time he spoke, the Newdow case had been decided by a three-judge panel, and was being considered for en banc rehearing in the Ninth Circuit. On February 28, rehearing was denied. On April 30, the school district that lost the Newdow case filed for review by the Supreme Court, and on October 14 the Court granted review of the case.
Title 28, section 455(a) of the U.S. Code reads, “Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” And Canon 3A(6) of the “Code of Conduct for United States Judges” reads, “A judge should avoid public comment on the merits of a pending or impending action.”
The first of these, which is actually law (though of doubtful enforceability where life-tenured judges are concerned), should be understood as speaking to the impartiality of a judge regarding the parties to a case, not the legal issues that a case may raise. Indeed, every subsequent part of the section is couched in exactly such terms–avoiding conflicts of interest owing to the identity of the parties, not the opinions judges may have of the legal questions they raise.
The Code of Conduct, by contrast, is not a law at all, but a set of admonitions adopted by the judiciary to guide its own members. (Notice, after all, the “should” language, as opposed to the “must” of the U.S. Code.) And while Canon 3A(6) cautions against “public comments on the merits” of a case, the word “impending” is terribly vague. Was Newdow an “impending” case before the Supreme Court on January 12? Maybe, maybe not. (Many observers expected the Ninth Circuit to grant an en banc rehearing and reverse the three-judge panel, in which case it is virtually certain there would have been no Supreme Court review.) And the same canon goes on to specifically exempt any “scholarly presentation made for purposes of legal education,” which is exactly what Scalia was doing that day in Fredericksburg.
But suppose we are as punctilious as possible about all this. Justice Scalia is already amply on record about the pledge and “under God,” and in much more comprehensive ways than anything he said in Fredericksburg. Here he is, dissenting in 1992 from the Court’s ruling against prayers at a high-school graduation:
[S]ince the Pledge of Allegiance has been revised . . . to include the phrase “under God,” recital of the Pledge would appear to raise the same Establishment Clause issue as the [graduation] invocation and benediction. If students were psychologically coerced to remain standing during the invocation, they must also have been psychologically coerced, moments before, to stand for (and thereby, in the Court’s view, take part in or appear to take part in) the Pledge. Must the Pledge therefore be barred from the public schools (both from graduation ceremonies and from the classroom)? In [the 1943 case of] Barnette, we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence–indeed, even to stand in respectful silence–when those who wished to recite it did so. Logically, that ought to be the next project for the Court’s bulldozer.
If Scalia has expressed such an obvious hostility to a judicial ban on “under God” in an actual case, what on earth can be objectionable about the far-less copious remarks he made in January, when Newdow was only a remote possibility on the Court’s docket? Only the most artificial distinction between on-the-bench and off-the-bench expressions of opinion can sustain his recusal.
Justice Anthony Kennedy has spoken similarly in a published opinion. Here he is in 1989, speaking of “under God” in the pledge: “it borders on sophistry to suggest that the ‘reasonable’ atheist would not feel less than a ‘full member of the political community’ every time his fellow Americans recited, as part of their expression of patriotism and love for country, a phrase he believed to be false.” This was in the course of criticizing the notion of hurt feelings as the proper test for whether the Constitution is violated by ceremonial invocations of God. Should Justice Kennedy recuse himself from Newdow as well?
To speak as plainly as possible, what we want in our federal judges are people who have strong opinions about the law and the Constitution. Do we really want to live by a fiction that says that their only opportunities to speak those opinions should occur on the bench in the decision of cases?
And to come to Alt’s main point, do we want to live by the fiction that in examining nominees for the bench, we should express no curiosity about their opinions on constitutional law? Many of these nominees come before the Senate with long “paper trails” of articles, papers, even books on the subject. Michael McConnell, now on the Tenth Circuit, is one of the nation’s most-distinguished commentators on the religion clauses of the First Amendment, with many publications on the subject. By Alt’s reasoning, pushed to its logical conclusion, Judge McConnell should recuse himself from every case that arises under those clauses. Or is it that he should only recuse himself if any senator asked a question–and he answered it–that inquired about all those writings of his? To ask such questions is to reveal their absurdity.
The Senate, acting on behalf of the nation no less than the president is, has every right to ask any question about precedents, doctrines, and revealing hypotheticals that will shed light on how a would-be jurist thinks about the law. Judicial nominees of both left and right like to pretend otherwise–and to hide behind the self-serving “Code of Conduct” of the insular judges’ cartel to maintain the pretense. Presidents, too, of both parties, like to pretend that such questions are none of the Senate’s business. Fine. But the Senate shouldn’t buy it. Senators are fully entitled to take a refusal to answer perfectly reasonable questions–about precedents on abortion, or affirmative action, or the establishment clause, or anything else–as sufficient reason to deny a nominee’s confirmation.
Alt gives good examples of some silly and overly detailed questions that senators asked of Miguel Estrada. Specifying a “test” he would use for “protective orders in product-liability litigation”–asked by Wisconsin’s Herb Kohl–is the sort of question to which the proper answer is, “how would I know until cases with specific fact patterns come before me as a judge?” But that is an answer. “Was Roe v. Wade correctly decided?” is a perfectly reasonable question, on the other hand, to which “I don’t know” is an unacceptable answer. Everyone who has made it through law school has a considered opinion, and the country is entitled to know what it is in the case of judicial nominees.
I realize these are unpleasant truths for conservatives to face right now, with a friendly president in the White House, Republicans controlling the Senate, and Democrats sniping from the position of a minority with filibuster power. But I seem to recall complaints from conservatives when the Senate–Republicans and Democrats alike–played patty-cake with Justices Ginsburg and Breyer during the Clinton years, letting them on the Supreme Court with no tough questions about their legal views. If Democrats are playing hardball now, that should be an invitation to get in the game–not to hide behind “ethics requirements” that run contrary to the constitutional responsibilities of elected officials charged with filling the bench with judges who understand the Constitution. Otherwise conservatives just set themselves up for the next time a liberal Democrat sits in the Oval Office.
–Matthew J. Franck is chairman of the department of political science at Radford University in Virginia.