I was listening to the radio part of the way home; something I normally try to avoid, but I’d done more driving than normal today, and my glove compartment had run out of CD’s. Anyways, I caught part of a segment about recent Supreme Count confirmation hearings, and part of the gist of the segment was that it’s tactically a good move for nominees to refuse to talk about possible cases that might come before the court, on the grounds that doing so would be improper.
I don’t know if that is tactially good or not (and don’t really care), but why on earth am I supposed to believe that it’s even a good idea for nominees to avoid giving their views on upcoming cases, let alone improper? Is this some standard nicety of legal ethics, or something that supreme court nominees have just made up? On the surface, it seems really weird: if you’re hiring somebody for a job, you want to do everything you can to get an idea of how that person would perform in the job; with a job as important as Supreme Court justice, wouldn’t that go double? Do other professions do this in their job interviews? Do doctors refuse to speculate on how they would treat future patients, referring questioners to their previous work instead?
To be sure, people change their views on things all the time, and any decent Supreme Court justice would admit as much. And one would hope that, in evaluating the quality of a potential justice, senators would look for more than whether or not he (or she, but probably he) would vote in the ways that the senator would prefer, looking in addition (or even instead) to see what reasoning the potential justice used to come to opinions. But that’s no reason to not try to get all the information you can about a candidate!
Maybe it’s just senators wishing that they didn’t have to answer questions when they were running for election about how they would vote. Democracy would be so much neater if we didn’t have to deal with such rude inquiries, after all…
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The theory, as I understand it, is that the justices might feel obligated to rule the way they said they would rule, instead of forming an opinion based on the arguments presented. (Which is how we pretend these things happen.)
An attorney might also ask that they recuse themselves for having publicly stated an opinion unfavorable to the attorney’s side of a case.
1/2/2006 @ 9:56 pm
In regards to the first point: they might, or they might not. I find it heartening how frequently Supreme Court justices change their mind, actually. I imagine that it might give them pause to want to rule one way when they’ve said in the past that they’d rule another way; it’s not clear to me that this is a particularly bad thing (or a particularly good thing).
At first, I was more sympathetic to the recusal argument. But recusal isn’t (or at least shouldn’t be) for having opinions: it should be for conflicts of interest. Don’t we all expect judges to have opinions? (Like that, say, following the law is good?) And even if they’re not overtly stated, it doesn’t mean that the opinions don’t exist, anyways.
I think that what’s bothering me here isn’t just the specific issue of confirmation hearings for judges, it’s the general meme floating around that it’s appropriate for our rulers to avoid questions, and the general lack of probing conversations in prominent fora. So our president tries to entirely avoid press conferences, his underlings try to steer press conferences and refuse to answer questions they don’t like, and our newspapers pretend that good reporting consists of repeating stories that have been fed to them, with minimal regard for sanity checking or even basic fact checking. And, if they were to do the latter, they’d be accused of bias. Sigh…
1/3/2006 @ 9:01 pm