SCOTUS appointment thread

[Ser Scot A Ellison]

Harry,

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?

Whether anyone listening to the interview could get the impression that the Judge or Justice had prejudged that legal issue. If "yes" then there is a violation.

You seem to view "appearence of impropriety" like a defamation claim. If the person has a lousy reputation they can't be defamed. That's not how I read Canon 2 because it isn't just about the individual Judge or Justice it's about the Judiciary as a whole and how that Judge or Justice's behavior reflects upon the Judiciary as a whole.

[Anya, Vengeance Demon]

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

I doubt a judge would put up with a debate this protracted, actually. After the first five minutes, he'd start thinking about his lunch meeting or whatever.

[Ser Scot A Ellison]

Harry,

I doubt a judge would put up with a debate this protracted, actually. After the first five minutes, he'd start thinking about his lunch meeting or whatever.

Oh, now you're never getting on the bench.

:P

Actually, I wonder if a Judge were to post under a psuedonym on a political message board, would that be a violation as no one would ever know it was the Judge posting?

[IheartTesla]

I read this interesting piece from an Atlantic blogger. Money quotes:

Obama often says that the White House is a bubble and very insular and that one of the things he hopes to do (and does by reading letters from the public) is to break out of the bubble.

Compared to the White House, the Supreme Court is a lagoon in the middle of nowhere. So was one of the reasons Obama picked Sotomayor that she would bring an outsider's perspective to this ivory tower edifice? I think the answer is yes. Obama often mentions empathy to signal this idea, but maybe this is an easier way to understand his thought process.

I think Obama believes that the legal world is manifestly out of touch with modern society -- that the judgment about Sotomayor's intelligence stems more from the unwillingness of academics to believe intelligence consists of something other than how an opinion reads. Obama seems to be sensitive to classism in the elite. Perhaps an outspoken Puerto Rican New Yorker seems foreign and makes an academic a little queasy, which translates, in public, to complaints about her intellectual heft. It would be interesting to see if Justice Sandra Day O'Connor faced similar concerns when Ronald Reagan nominated her in 1981, she of humble western roots and a lack of ivory polish, who nevertheless also graduated from a top law school.

The academic world in general is removed from modern society...but the judicial branch has more immediate impact on society as a whole, so I am sympathetic to Obama's notion (if true) that the court needs some shaking up.

[Guest Raidne]

And incidentally I think that opposing Sotomayor because of her political opinions is perfectly valid; Obama of course picked her in part because of those positions, and it's still hard for me to see, now that the partisan situation has changed, why Republicans in Congress couldn't take that into account as well.

It's curious to see you argue that how Sotomayor is likely to rule on various issues is irrelevant to her job. Assuming that she provided the deciding vote in each case, would you think that it was irrelevant if she thought that (a) flag burning could be prohibited under the First Amendment; (b) there was a constitutional right to gay marriage; © the death penalty was unconstitutional; or (d) the President could ignore all laws related to his war-making power?

See, on each of the issues you mention, they can be political issues, sometimes, but are not inherently so. Instead, they are legal issues - constitutional issues - and a person could come down on either side regardless of their politics.

So, while I personally think it's a big, stupid fiction that we say we don't care about a judge's politics, I don't think that's what you're talking about. Those questions can and should be asked to Supreme Court Justices. Like you say, not any particular case, but the larger jurisprudential issues.

That's not asking whether gay marriage is right or if we should have gay marriage - it's asking if the Constitution, as its written, allows for it.

And if you're not going to support a Justice or not based on that, something's wrong with this country. After all, should we not be able to ask Justices about their views on Presidential power under the Constitution because it becomes a political issue when Bush seeks to expand it? That argument was made, and it stinks.

[Ser Scot A Ellison]

Raidne,

That's not asking whether gay marriage is right or if we should have gay marriage - it's asking if the Constitution, as its written, allows for it.

But commenting regarding the issue creates the appearence of bias if the Judge or Justice says the Constitution does or does not allow for homosexual marriage. Doesn't it make more sense under the Judicial Canons for the nominees to refrain from commenting on an issue they are wont to face in their offical capacity?

[Guest Raidne]

Raidne,

But commenting regarding the issue creates the appearence of bias if the Judge or Justice says the Constitution does or does not allow for homosexual marriage. Doesn't it make more sense under the Judicial Canons for the nominees to refrain from commenting on an issue they are wont to face in their offical capacity?

I think you're misinterpreting the whole appearance of impropriety thing. That's more of a personal bias issue. Like when Scalia went duck-hunting with Cheney. Or not, as he'd have it.

[Paddy]

Look, is it a proper roll for Congress

Enough, I say!

I've let you go one with this for too long Scot.

When you are talking about an expected function, characteristic, or behaviour, the word is spelled "role".

When you are talking about a motion, especially arcing or circular, a small rounded piece of bread, or a bundle of money, or throwing dice, or a bunch of other things, the word is spelled "roll".

Get it right and help stop racism... sorry I thought I was somewhere else there for a moment.

:P

[The Progressive]

I think Obama believes that the legal world is manifestly out of touch with modern society

There's no better proof of this than the inane posts from serscot about "impropriety" on the last few pages of this thread.

[Ser Scot A Ellison]

Lev,

There's no better proof of this than the inane posts from serscot about "impropriety" on the last few pages of this thread.

No. It's not merely about "impropriety" as you so blithely state. It's about avoiding the appearence of bias or prejudgment of cases and issues Judges and Justices may be called upon to review and rule on.

Impartiality of the Judiciary is one of the cornerstones of Anglo-American jurisprudence. If you would like to throw that out simply elect Judges and make them part of the politicial process feel free to push for such reform. As for myself I like and respect Judges who have the ability to rise above their personal biases and simply rule upon the law as it is written.

Paddy,

Yeah, I caught that mispelling in a later post. I'll correct "roll" for "role" in the post you quote. Thanks.

[Ran]

Just to say, that I really don't think a judge is no longer partial because they take part in lecture series, roundtables, public conferences, interviews, etc. They are some of our most important legal minds, and their understanding of the arcane paths of the law should not be hoarded away like secret knowledge that somehow becomes tainted when exposed.

My reading of the text of that Canon 2(A) sure doesn't seem anything like suggesting that they just have to become veritable hermits who never talk about the law outside of their chambers.

[Ser Scot A Ellison]

Ran,

Judge and Justices must be extremely careful when they talk law outside the context where they can properly exercise their power. I liked the way Laura's Judge handled it. He avoided any possible accusations of bias by simply saying, "I don't talk about the law outside of the courtroom or the classroom. Nor do my employees."

[Ser Scot A Ellison]

It's interesting there is apparently resistence to Judge Sotomayor coming from NARAL.

From the link:

Now, some abortion rights advocates are quietly expressing unease that Judge Sotomayor may not be a reliable vote to uphold Roe v. Wade, the landmark 1973 abortion rights decision. In a letter, Nancy Keenan, president of Naral Pro-Choice America, urged supporters to press senators to demand that Judge Sotomayor reveal her views on privacy rights before any confirmation vote.

“Discussion about Roe v. Wade will — and must — be part of this nomination process,†Ms. Keenan wrote. “As you know, choice hangs in the balance on the Supreme Court as the last two major choice-related cases were decided by a 5-to-4 margin.â€

I wonder where this will go?

[TrackerNeil]

It's interesting there is apparently resistence to Judge Sotomayor coming from NARAL.

From the link:

I wonder where this will go?

Nowhere, I think. Barring some unforeseen bombshell Republicans are going to find it exceedingly difficult to derail this nomination; for liberals, that is all but impossible. Besides, who really wants to take to task the first Hispanic nominated to the Court?

[Guest Raidne]

Ran,

Judge and Justices must be extremely careful when they talk law outside the context where they can properly exercise their power. I liked the way Laura's Judge handled it. He avoided any possible accusations of bias by simply saying, "I don't talk about the law outside of the courtroom or the classroom. Nor do my employees."

This is just the worst kind of crap - that a judge might be biased if they state, say, publicly that they don't think the 2nd Amendment confers the right to carry rocket propelled grenades without a license. That's an opinion, not a bias.

Now, on the other hand, if a judge is called to rule on that issue and is the major shareholder in RPG, Inc. they should probably recuse themselves from ruling on the case because their personal bias would clearly be implicated.

Because, Scot, the 2nd Amendment does not state clearly, as its written, whether people should be able to carry RPGs. It has to be interpreted. That's what Judges are for.

It's manifestly more relevant to vote for or against a Justice based on their opinions on Constitutional interpretation than on whether they'd seem like a nice person to have over for dinner.

[Ser Scot A Ellison]

Raidne,

that a judge might be biased if they state, say, publicly that they don't think the 2nd Amendment confers the right to carry rocket propelled grenades without a license. That's an opinion, not a bias.

Stating that opinion shows bias on that issue. It shows the Judge or Justice isn't impartial or that their impartiality regarding that issue is questionable. Which is exactly what Judges and Justices are charged with avoiding under Canon 2. I think we simply disagree on this.

[Maltaran]

Raidne,

Stating that opinion shows bias on that issue. It shows the Judge or Justice isn't impartial or that their impartiality regarding that issue is questionable. Which is exactly what Judges and Justices are charged with avoiding under Canon 2. I think we simply disagree on this.

If you're going to define impartiality that strictly, then no-one in the world is qualified to be a judge.

[Ser Scot A Ellison]

Malt,

Everyone has their bias. I'm simply saying advertising that bias with public comments like "I don't think the 2nd amendment is a right held by an individual" or "I think the 2nd amendment is a right held by an individual" violates Canon 2 because the Judge or Justice is clearly revealing their bias.

[SwordoftheMorning]

If you're going to define impartiality that strictly, then no-one in the world is qualified to be a judge.

You are missing Scot's point Malt. He is clearly saying he knows judges have opinions on all sorts of issues, including ones that might be presented as case before them He is simply tasking all judges with the duty to STFU about .... well, everything. He is also stating that Congress has no right to ask questions of judges about .... well, anything.

Unrealistic ? sure. A ridiculously strict interpretation of the canons that in and of themselves are contridictory ? of course.

Sorry Scot, as much as you try to justify the mindset by sticking to your "canons" (lol), that dog ain't gonna hunt.

[Yagathai]

People, please, stop poking the bear with sticks. Sure it's amusing, but it makes you look bad and it isn't doing much for the bear, either.