The "Appearance" of Judicial Impartiality

By Big Tent Democrat, Section Supreme Court
Posted on Sun May 16, 2010 at 09:15:52 AM EST
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One of the silliest arguments that you will hear to defend the view that judicial nominees should not answer questions about their legal views is the supposed need to maintain "the appearance of impartiality." By that logic, the Supreme Court itself could not decide cases that touch upon decisions they participated in. Let me provide a few examples. The late Chief Justice William Rehnquist dissented in Roe v. Wade in 1973. After Roe, a series of cases touching on the right to choose came before the Court. And in 1993, the Court decided Planned Parenthood v. Casey. To the surprise of no one, Rehnquist maintained his view that Roe was wrongly decided:

In Roe v. Wade, the Court recognized a "guarantee of personal privacy" which "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 410 U.S. 152"]152-153. We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly.

Was the "appearance" of judicial impartiality damaged because Rehnquist had publically stated his views on the right to choose in his dissent in Roe? And if it wasn't, how in blazes would requiring a judicial nominee to say whether they agree with Roe or Casey damage the "appearance"of impartiality?

This argument for not requiring answers from judicial nominees is empty, vacuous and idiotic.

Speaking for me only

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The "Appearance" of Judicial Impartiality | 27 comments (27 topical)

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I'd like Kagan to be asked if (5.00 / 1) (#4)
by Anne on Sun May 16, 2010 at 10:47:03 AM EST

she plans to recuse herself from hearing matters she was involved in as Solicitor General; if so, wouldn't that free her to be more open with the committee about her opinions on those issues?

And if she does not intend to recuse herself, I think there ought to be a few follow-up questions on that decision, as well.

Neat trick (none / 0) (#5)
by Big Tent Democrat on Sun May 16, 2010 at 10:50:58 AM EST

Worth considering.


: are you surprised the WH isn't (none / 0) (#11)
by oculus on Sun May 16, 2010 at 11:15:49 AM EST

claiming privilege re Kagan's writings during the Clinton and Obama administrations? Is this PPUS?

T. Marshall apparently recused himself (none / 0) (#7)
by andgarden on Sun May 16, 2010 at 10:53:35 AM EST

a good deal his first term, FWIW.

Can we come up with some cases on deck where Kagan's views might be illuminating?


: SpeechNow v. FEC (none / 0) (#27)
by jr on Sun May 16, 2010 at 02:11:39 PM EST

Going to rely heavily on Citizens United, which she oversaw and argued on rehearing.

For a more striking historical example... (5.00 / 1) (#18)
by jr on Sun May 16, 2010 at 11:44:29 AM EST

...look no further than Marbury v. Madison, the Big Daddy of American jurisprudence.

The backstory is that Marbury had been commissioned as a Justice of the Peace for DC by President Adams, but his commission was never delivered by Adams's then-Secretary of State. The subsequent SecState was James Madison, who refused to deliver the commission or recognize the Court's authority to compel him to do so (or even to argue his case before them).

The name of the Secretary of State who'd failed to deliver the commission in the first place was John Marshall, Chief Justice of the United States and author of the Court's opinion in Marbury. The actual courier who failed to make the delivery was likely James Marshall, his brother.

Now if that isn't the quintessential example of the Court not really giving two figs about the appearance of impartiality, I don't know what is.

(But see: Caperton, holding, as I recall, that the appearance of serious conflicts of interest require recusal under the Due Process Clause.)

Did Rehnquist express any opinion (none / 0) (#1)
by oculus on Sun May 16, 2010 at 10:08:19 AM EST

on Roe v. Wade at his Senate Judiciary comm. hrgs?

In 1986? (none / 0) (#2)
by Big Tent Democrat on Sun May 16, 2010 at 10:38:05 AM EST

I do not know. Good question.


I found this (none / 0) (#3)
by Big Tent Democrat on Sun May 16, 2010 at 10:46:37 AM EST

this.


Excellent. And astounding. (5.00 / 1) (#10)
by oculus on Sun May 16, 2010 at 11:10:00 AM EST

What has become of the Senate Judiciary committee?


I wonder what sort of justice (none / 0) (#13)
by Militarytracy on Sun May 16, 2010 at 11:36:10 AM EST

he would have become if they hadn't ever grilled his butt in front of God and everyone like that?


Kind of renovated my opinion of Ted (5.00 / 1) (#16)
by oculus on Sun May 16, 2010 at 11:40:19 AM EST

Kennedy. Which was tarnished by his cowering during the Thomas confirmation hrgs.


You're Joking, Right? (none / 0) (#17)
by squeaky on Sun May 16, 2010 at 11:41:31 AM EST

No, I'm not (none / 0) (#19)
by Militarytracy on Sun May 16, 2010 at 11:45:53 AM EST

I think he could have been a true blue horror story without that public butt frying.


: Wow (none / 0) (#21)
by squeaky on Sun May 16, 2010 at 11:52:41 AM EST

I can't imagine that the confirmation hearing made one iota of difference to his SC behavior.
Why would it?
Sorry, I am not seeing the connection you are making.

Nostalgic (none / 0) (#15)
by squeaky on Sun May 16, 2010 at 11:40:04 AM EST

Also reminds me of Reagan's saw, in a similar setting: "I do not recall...."

Looking back, it's amazing that Roe was 7:2 (none / 0) (#6)
by andgarden on Sun May 16, 2010 at 10:51:55 AM EST

I think that fact alone serves as a good argument for investigating the substantive views of nominees.

speaking of, btd, did you see Greenwald on (none / 0) (#8)
by david mizner on Sun May 16, 2010 at 10:57:33 AM EST

this week? Good stuff, specially this:

http://www.youtube.com/watch?v=1OWoa3mwbKo&feature=player_embedded

Stacking of the Courts (none / 0) (#9)
by Saul on Sun May 16, 2010 at 11:06:25 AM EST

IMO most nominees are selected to view the ideas and agenda of the Democratic President or party or Republican President or party doing the picking for nomination.

So just on that how can they really be impartial. As a rule the nominee owe his allegiances to the President or his party that nominated him or her. Although they will never say that it just understood. I know that Rehnquist was a republican pick which turned liberal but that is usually an exception rather than the rule.

My proposal would be to alternate the nominee by party. If the last nominee was a Republican then the next nominee must come from the Dem or liberal ranks regardless if the sitting president is a Republican and vice versa

To me this keeps the court from being stacked which is the current practice. Of course the reality of this is another story.

: This would be an interesting inquiry of (none / 0) (#12)
by oculus on Sun May 16, 2010 at 11:17:34 AM EST

past and present Justices and CJs:
As a rule the nominee owe his allegiances to the President or his party that nominated him or her.

See Sam Stein on Huff Post. (none / 0) (#14)
by oculus on Sun May 16, 2010 at 11:36:30 AM EST

Gringrich calls on Pres. Obama to withdraw Kagan nomination. Why: (1) she is "anti-military), (2) as Harvard Dean she accepted money from Saudi Arabia.

Wonder if Gringich has forgotten those photos of Saudi sheiks heading home from U.S. after 9/11 when no one else could fly.

Perhaps if the (none / 0) (#20)
by jimakaPPJ on Sun May 16, 2010 at 11:47:47 AM EST

Arizona 1070 had been in effect we could have picked them up.

You would have wanted that, wouldn't you?

Now that the sarcasm is past, why don't you bring the subject up of Muslim money and politicians
in an open thread? You can follow it with donations to our "elite" universities and the establishment of mosques and private schools funded from SA and other Islamic theocracies.


I was thinking more along the (none / 0) (#22)
by oculus on Sun May 16, 2010 at 12:14:56 PM EST

lines of "pot calls kettle."


: That makes no sense (none / 0) (#26)
by jimakaPPJ on Sun May 16, 2010 at 01:52:02 PM EST

Sessions (none / 0) (#23)
by squeaky on Sun May 16, 2010 at 12:23:21 PM EST

Sen. Jeff Sessions, the ranking Republican on the Senate Judiciary Committee, told ABC News' "This Week" that Supreme Court nominee Elena Kagan "violated the law" by not allowing military recruiting on the Harvard Law School campus when she was dean there, and added the issue is "no little-bitty matter."

What a hack.


Is a private college required by law to (none / 0) (#24)
by oculus on Sun May 16, 2010 at 12:28:22 PM EST

permit on-campus military recruitment? Tied to receing fed. $$$? Did Ssn. Sessions mention which law she violated?


: No (none / 0) (#25)
by squeaky on Sun May 16, 2010 at 01:01:12 PM EST

They lose federal funding though, if they disallow it. Would have been 15% of Harvard's budget. Oh, and of course Sessions did not say what law she broke... he is trying to make a case that because the Recruiters had to go through the Student Veterans venue, it was illegal... Evidentially the federal government did not have a problem as Harvard did not lose a dime of funding.

Her management of the recruiting dispute shows her to have been, above all, a pragmatist, asserting her principles but all the while following the law, so that Harvard never lost its financing....
But even when she later briefly barred the military from using the law school's main recruitment office, she continued a policy of allowing the military recruiters access to students...
Because of the military's policy against openly gay soldiers, the law school in 1979 barred military recruiters from using its Office of Career Services, the central clearinghouse through which employers from all over the world seek to recruit top-notch law students.
But in the mid-1990s, Congress approved several versions of the Solomon Amendment -- named for Representative Gerald B. H. Solomon, a conservative Republican from upstate New York -- denying federal funds to schools that barred military recruiters...
Harvard reached its own accommodation in 1996. While the school did not allow military recruiters to use its main placement office, it did allow them on campus through the Harvard Law School Veterans Association, a student group. The recruiters met with students in the same classrooms, just under different sponsorship.
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