SCOTUS appointment thread

[Anya, Vengeance Demon]

No, Canon 2. They're not avoiding the appearence of impropriety when they go jabbering to the press.

Ah. And I suppose this applies as well to the other Supreme Court justices who have "jabbered to the press" by speaking publicly and writing on legal issues? That includes John Roberts, Clarence Thomas, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, and Anthony Kennedy.

[Ser Scot A Ellison]

Harry,

Ah. And I suppose this applies as well to the other Supreme Court justices who have "jabbered to the press" by speaking publicly and writing on legal issues? That includes John Roberts, Clarence Thomas, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, and Anthony Kennedy.

Quite frankly, in my opinion, yes. They shouldn't be doing that outside of the context of the exception created by Canon 3(A)(6) regarding scholarly presentations for purposes of legal education.

[TrackerNeil]

Harry,

Quite frankly, in my opinion, yes. They shouldn't be doing that outside of the context of the exception created by Canon 3(A)(6) regarding scholarly presentations for purposes of legal education.

So seven out of nine Supreme Court justices have violated this code of ethics?

[Anya, Vengeance Demon]

TN:

Eight of nine. And probably Alito as well, but I couldn't google anything offhand that would make that point.

Quite frankly, in my opinion, yes. They shouldn't be doing that outside of the context of the exception created by Canon 3(A)(6) regarding scholarly presentations for purposes of legal education.

So in essence, Sotomayor should answer no questions about her legal philosophy, even though it's relevant and it's something that every sitting Supreme Court justice has done, because it violates a reading of Canon 2(A) that no reviewing body has ever endorsed.

Your view is so strict that it would seem to write out of the Judicial Canons Canon 4(A): "A judge may speak, write, lecture, teach, and participate in other activities concerning the law, the legal system, and the administration of justice." This is curious because, if you read the commentary, judges are _encouraged_ to do these things.

[Ser Scot A Ellison]

Harry,

I think Judges and Justices are far too public regarding their views of law and issues they may face in their roles as Judges and Justices. I think talking about the law in the context of scholarly works or legal education is okay but I don't believe the Judges and Justicies should ever opine as to what their opinions regarding such issues are. Scalia in particular is bad about this.

[Anya, Vengeance Demon]

Harry,

I think Judges and Justices are far too public regarding their views of law and issues they may face in their roles as Judges and Justices. I think talking about the law in the context of scholarly works or legal education is okay but I don't believe the Judges and Justicies should ever opine as to what their opinions regarding such issues are. Scalia in particular is bad about this.

That's ridiculous. You're essentially saying that a judge should explain how the law functions in American life without offering his view of how the law functions in American life. That's impossible by defintion, because the judge cannot help but offer his own view.

[Ser Scot A Ellison]

Harry,

Giving your "legal views" gives litigants an idea of how the Judge or Justice is going to rule before they ever read a brief or hear a word from attornies for the litigants. That gives the appearence of bias which is precisely what Canon 2 is designed to avoid. Yes, my view is strict. It is my opinion that Judges and Justices should be much more guarded about their public statements than they have been in the recent past.

Judges and Justicies are not politicians. They are not elected. They do not and should not hold a "bully pulpit". They are granted tremendous power to affect this nation for decades to come. As such I see it as vital that they take the cases before them as impartially and seriously as possible. As such public statements that give the impression of prejudgment of issues are not proper and should be avoided at all costs, in my opinion.

[Anya, Vengeance Demon]

Giving your "legal views" gives litigants an idea of how the Judge or Justice is going to rule before they ever read a brief or hear a word from attorney's for the litigants. That gives the appearence of bias which is precisely what Canon 2 is designed to avoid.

So in the absence of Scalia's legal views as put forward in interviews, the general public would believe that he _has_ no legal views?

[Ser Scot A Ellison]

Harry,

So in the absence of Scalia's legal views as put forward in interviews, the general public would believe that he _has_ no legal views?

No, I and others would be well aware he has opinions. That said those opinions would be not be devined outside of the proper context of the opinions he has written based upon proper briefing and oral arguments from litigents.

[Anya, Vengeance Demon]

No, I'm well aware he would have opinions. But, outside of the proper context of the opinions he has written based upon proper briefing and oral arguments from litigents, I wouldn't know what those opinions are.

So the general public would know that he had opinions, but wouldn't believe that he prejudged his cases because they didn't know what they were?

[Ser Scot A Ellison]

Harry,

So the general public would know that he had opinions, but wouldn't believe that he prejudged his cases because they didn't know what they were?

Well, that's not relevant the point is to avoid the appearence impropriety as Judges and Justices are supposed to do per Canon 2.

[Anya, Vengeance Demon]

Well, that's not relevant the point is to avoid the appearence impropriety as Judges and Justices are supposed to do per Canon 2.

If an interview doesn't _give_ people the impression that Scalia prejudges his decisions, because they would have had that impression anyway, then Scalia giving that interview doesn't create the appearance of impropriety.

[Ser Scot A Ellison]

Harry,

If an interview doesn't _give_ people the impression that Scalia prejudges his decisions, because they would have had that impression anyway, then Scalia giving that interview doesn't create the appearance of impropriety.

That's a mighty fine parsing of words there. A big part of Canon 2 "avoid the appearence" is to keep Judges from "riding the line" so to speak.

[Anya, Vengeance Demon]

That's a mighty fine parsing of words there. A big part of Canon 2 "avoid the appearence" is to keep Judges from "riding the line" so to speak.

So you're saying that an interview can create the appearance of impropriety even if it doesn't convince anybody that the judge is improper.

[Humble Asskicker]

Ser Scot

Look, is it a proper roll for Congress, in offering advice and consent on a President's judicial nominees, to try to affect the outcome of cases before they are heard? Here I thought Judicial nominees and Judges weren't supposed to comment on cases and issues they might be asked to rule upon under the Judicial canons. As such, political opinions and possible rulings are not someing Congress should be open for Congressional inquiry.

Shouldn't, but probably, for now, inextricably is.

I remember reading an interesting essay by Sandra O'Connor on just this (I can't remember the periodical's title, and it's bugging me). She went in depth on the political process of appointing judges.

She conceded that to a certain extent it was unavoidable, but opined that it wasn't necessary for it to be as extreme as it is, and in fact is a great impediment to the judicial process, which deserves a certain objectivity over the plague of a priori politics in catering to one's constituents, and measures should be taken to dampen the lobbying-electoral process that is prevalently done.

So in a sense, judges may adhere more to the political agenda that greases the wheels than their duties to the office, and likewise allows Congress to smear the line a little themselves.

I wish I could remember that periodical so I could provide a link. It really was an interesting piece. It's amazing how fascinating some of this issues can be. If I wasn't generally apathetic, I think I could develop an interest in law and politics.

[Ser Scot A Ellison]

Harry,

So you're saying that an interview can create the appearance of impropriety even if it doesn't convince anybody that the judge is improper.

If the Judge or Justice gives commentary to the interviewer that creates the impression the Judge or Justice has prejudged issues the Judge or Justice may face, then, yes the interview creates the appearance of impropriety because Judges and Justices are expressly barred from prejudging issues they may face.

[Anya, Vengeance Demon]

If the Judge or Justice gives commentary to the interviewer that creates the impression the Judge or Justice has prejudged issues the Judge or Justice may face...

You're not responding to my point. How can an interview "create an impression" if people already held that impression and aren't any more likely to hold that impression after the interview is published?

[Ser Scot A Ellison]

Harry,

You're not responding to my point. How can an interview "create an impression" if people already held that impression and aren't any more likely to hold that impression after the interview is published?

No, you're right I'm not responding to your point because it is legal gymnastics and we both know it. The Canons are not about the fine print nor should they be. You seem to be implying that once the damage is done any further violations of Canon 2 are just water under the bridge. That's not how I read that Canon.

[Anya, Vengeance Demon]

No, you're right I'm not responding to your point because it is legal gymnastics and we both know it. The Canons are not about the fine print nor should they be.

So if somebody asked you whether a given activity created the appearance of impropriety, how would you respond to that question? What factors would you look at?

[IheartTesla]

Oh god what a tiresome debate. Remind me never to step into a courtroom ever.

Its always funny when a new justice gets nominated. Everyone in the beltway and talking heads on TV get all in a lather while the rest of the country shrugs their collective shoulder. Hopefully all this hoopla doesnt taint any of the process in committee and when the Senate goes to vote (thats my biggest issue with all of this, even with Alito and Roberts)