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Fitzpatrick on Judicial Recusals and the First Amendment

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.