Writing in the National Law Journal, my friend (and former Scalia clerk) Brian Fitzpatrick criticizes canons of judicial conduct that instruct federal judges to “avoid public comment on the merits of a pending or impending action,” and to recuse themselves whenever their “impartiality might reasonably be questioned.” He writes:
Those who support the current code of judicial conduct typically worry that judges who speak publicly on pending cases do not have (or at least do not appear to have) an open mind on the issues they speak about. But this is not true. Simply because a judge has preconceived views, does not mean the judge cannot change his or her mind. I recall many instances when Scalia entered a case with certain expectations as to how he would rule, only to change his mind once he read the legal arguments submitted by the parties. In any event, even if some judges are close minded, they are no less close minded when they keep their views privately to themselves.
I think it’s interesting to pair the current flap over Scalia and judicial recusals with the recent debate over whether Supreme Court nominees should disclose their likely positions on issues that they may vote on if confirmed. Perhaps a difference exists between an actual case that is pending before the Court and a hypothetical case that will very likely appear during a Justice’s tenure on the Supreme Court. But it seems to me that we need a consistent answer for both scenarios: Either we should be very concerned about a Justice expressing his or her likely views about a legal issue before the case is decided, or else we shouldn’t be very concerned.
I agree with Brian’s argument, and have argued that the canons of ethics unconstitutionally interfere with judges’ free speech rights, even beyond what the Supreme Court declared unconstitutional in Republican Party v. White.
There may be a difference between pending cases and hypothetical ones, though, in that hypotheticals more easily allow the person answering to limit his or her comments to legal issues, rather than cases per se. A commitment to decide an issue a certain way does not render a judge impermissibly partial. All judges have views on legal issues, and it is good that they are experienced enough to have such views. A commitment to resolve a particular case a certain way is the very definition of partiality, however, because it is a commitment that one party to the proceeding will win and one will lose. Perhaps the difference is cosmetic, but it is surely more meaningful than the usual “appearance of impropriety” mantra used by defenders of the current canons.
I tend to disagree with Brian’s argument, at least as quoted here, because I think it misses the point, or part of the point. The concern is not just with whether a judge will or will not be able to change her mind. (And if a judge isn’t able to change her mind, staying quiet about it is not much of rememdy.) The issue has more to do with how the judge and the judicial system is perceived, with whether parties believe that they are getting a fair shake. I recall seeing empirical work a few years ago suggesting that one of the most important factors going to whether people think an adjudicatory process is fair is whether they feel they have the opportunity to be heard. If the judge is speaking out about an issue before the parties can be heard — even if it’s in hypothetical terms, and even that judge is perfectly capable of changing her mind — it will tend to undermine the parties’ faith in the process.
I disagree with Brian’s argument (for the classic reasons stated by Tyrone) but also with your contention that we need to be consistent between the confirmation process/pending cases while on the bench.
It’s not merely that cases are pending in the Scalia situation that makes a difference (though I think it does make a difference), it’s the countervailing interest of the democratic process when a justice is up for confirmation.
We should always be concerned when a justice/potential justice is speaking out on issues that might come before them/are coming before them. However, before the justice is confirmed, the Senate has a constitutional (and democratic) right and duty to explore anything it, as the elected representative body of the public, sees fit.
This interest fades away once the justice is put on the bench, because, obviously, the Senate has been satisfied.
So it’s perfectly sensible to permit the Senate to require public disclosure of views before confirmation, but bar it afterward.
It’s funny because if we were to make a distinction between the two cases, I would tend to take the exact opposite view from Paul’s. Say whatever you want about sitting judges speaking out on issues, but at least one can assume it represents their honest view of the issue and nothing more. But encouraging judges to be more open in the confirmation process would essentially require judges to make “campaign promises” regarding certain results as a quid pro quo for confirmation. One can speculate all one likes about how many nominees would actually shade their views as part of this process, but the real point is that it creates extremely dangerous incentives.
The root of the problem is that the public perceives high-profile cases as being solely about issues, while in reality cases are about both issues and case-specific facts. One can speak out on an issue without prejudging how that issue would affect a particular set of facts. So from an intellectual perspective, there’s no reason to prevent judges from speaking out on issues as opposed to facts, nor is there any expectation that judges will keep an open mind on issues of law. (Is a judge supposed to have no preconceived notion as to whether an offer and acceptance are necessary for a contract to be formed?)
On the other hand, as Tyrone says, the ultimate goal is public confidence in the judicial system. And even if public statements on an issue of law don’t mean that a case is being prejudged, does that really matter if it appears to the public that the case is being prejudged?
My point of view is that judges should be free to speak out on issues of law, but they need to be very careful to supply the appropriate disclaimers to make clear that they are not prejudging any particular set of facts. Easier said than done, of course.
Orin,
I disagree with your assessment that it is inconsistent to treat confirmation statements versus statesments after confirmation differently. The confirmation process presents different risks, chief among which is making the judiciary too subservient to the senate and the preseident. Independent of whether or not you believe judges can be impartial despite speaking on issues of law, there is a separate consideration as to how much politics should enter the confirmation process.
As a tactical decision it is helpful to blend these issues because it is easier to say, “No Senator I can’t answer that because it wouldn’t be fair to prejudge” than it is to say “No Senator, I can’t answer that because it would give you and your fellow senators undo influence” (by means of a selection effect).