Judicial Constraint

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It has become accepted in America today that someone who wants to be a judge, whether elected or appointed, should not say how he will rule on any cases that might come before his court. Here in my home state of Ohio, there is a "Code of Judicial Conduct" that judges and judicial candidates are required to follow. One rule says, "Judicial candidates shall not make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office; [or] make statements that commit or appear to commit them with respect to cases or controversies that are likely to come before them as judges;"(1) There is no law that says what nominees for the United States Supreme Court are allowed to say, but all nominees for at least the last twenty or thirty years have followed this same "don't ask, don't tell" policy.

And it's nuts. For what other office would we accept the idea that it is an "ethics violation" for a candidate to say what he would do if elected? Can you imagine a candidate for president saying, "I can't tell you where I stand on tax cuts or what I would do about terrorism, because I might have to make decisions on those things if elected." Surely our response would be, Of course! That's why we want to know what you would do about them! We don't care about your position on issues that are not going to come before you as president.

I don't know who made up this rule or why. To give them the benefit of the doubt, perhaps they were thinking of a scenario like this: Smith is arrested for a highly-publicized murder. While the trial is pending, there are elections for a new judge. Jones is campaigning for this office. A reporter asks him about the Smith case, and he says that he's convinced Smith is guilty and if he is elected he will convict him. But ... there hasn't been a trial yet. How can Judge Jones say how he will rule when he hasn't even heard the evidence yet? At best Jones is jumping to conclusions. At worst he is acting out of prejudice, perhaps based on the defendant's race or religion.

As one senator put it, suppose the president demanded of a nominee, "'I cannot appoint you until I know how you will decide the [whatever] case?' [The nominee] tells him, and then [the president] asks him how he will decide Tom Jones’s case, and Bill Wilson’s case, and thus catechises the judge as to how he will decide any case which may arise before him. Suppose you get a Supreme Court composed of such judges, who have been appointed by a partisan President upon their giving pledges how they would decide a case before it arose,—what confidence would you have in such a court?"(2)

But surely the basis of this objection is that the judge is being asked to commit to a decision before he has heard the evidence. In an ordinary case, the parties present their evidence at a trial. If the case has been in the media, the judge may have heard news reports about it, but we expect a fair judge to wait until he has given both sides a fair chance to present their case before he comes to a decision.

But that reasoning only applies to cases where the issue is a dispute over specific facts. Did Mr Jones shoot Mr Brown or not? Did the contract obligate company X to buy 10,000 pairs of shoes from company Y or not?

But debate about judicial nominations is not about these kinds of questions. It is about political issues. This is not a new phenomenon. The quote from a senator that I gave above is not recent. It is from a speech in 1858 by Stephen Douglas, the man who ran against Abraham Lincoln. Where I substituted "[whatever]" in that quote, he originally said "Dred Scott", the case that declared that most laws against slavery were unconstitutional and that black people can not be U.S. citizens. Lincoln loudly condemned that decision. Douglas warned that if Lincoln was elected president, he might insist that anyone he nominates to the Supreme Court must be anti-slavery. Douglas found this idea a threat to the impartiality of judges.

Asking a potential nominee about his views on slavery is very different from asking him about his views on, say, a particular murder case. In the murder case, the judge doesn't know the facts until the case is presented in court. He doesn't know if Mr Jones was in the house or not, whether he had a gun, whether he pulled the trigger, etc. (Maybe after he hears the evidence he still can't be sure, but that's what "reasonable doubt" is all about.) With an issue like slavery, the judges surely knew all about slavery long before the Dred Scott case came before the court. In the end, the Supreme Court declared that only one piece of evidence presented in court affected their decision: Mr Scott was black, and therefore had no rights. They declared the rest irrelevant.

Since then, of course, the Supreme Court has been overruled on slavery. Today, every time a nominee for the Supreme Court is considered, there's a different elephant in the room that everybody is supposed to pretend they don't notice: abortion. Surely every possible nominee for Supreme Court justice knows whether he is for or against abortion, and how he will rule on any abortion case that comes before him. It is extremely unlikely that any evidence presented in court is going to change the judge's opinion. Nor is there any reason why it should: The judge has surely heard all the arguments many times by now, and has made up his mind.

Of course abortion isn't the only relevant issue. Our courts have made many decisions that are politically charged, from campaign finance to affirmative action to gay marriage. So why would it be wrong for a nominee to state his views on these subjects? Then those who agree with him could vote for him and those who disagree could vote against him. That's how democracy is supposed to work. Instead, we are treated to the bizarre spectacle of nominees not only refusing to say what they will do if they get the office, but claiming that it would be unethical for them to give any clues. Just put me in office -- for life -- and once I'm in you'll see what I do.


1. American Judicature Society. "Judicial Selection in Ohio: An Introduction". Undated, accessed Nov 2005. http://www.ajs.org/js/OH_elections.htm

2. Douglas, Stephen. Speech in Springfield, IL, Jul 17, 1858. Quoted on "Teaching American History". http://teachingamericanhistory.org/library/index.asp?document=508

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Posted 12 Nov 2005.

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