Patterico's Pontifications


Law Professor Concerned when Clarence Thomas Speaks Freely

Filed under: Judiciary — DRJ @ 3:34 pm

[Guest post by DRJ]

Writing in Friday’s Christian Science Monitor, University of Pennsylvania law professor Kermit Roosevelt wonders “Can Clarence Thomas attack liberals and still be a fair justice?”

Roosevelt’s concern initially focuses on conservative justices:

“What can judges properly say outside court? Supreme Court Justice Clarence Thomas‘s harsh assessments of liberals throughout his recent autobiography have brought this question back into the news.

Of course, it has not been absent long. In March 2006, lawyers asked Justice Antonin Scalia to disqualify himself from a case involving Guantánamo detainees after he ridiculed the idea that captured enemy combatants deserved jury trials during a speech at the University of Freiburg in Switzerland. Justice Scalia refused, though in 2003 he did recuse himself from hearing a challenge to the recital of the Pledge of Allegiance in public schools after giving a speech in which he criticized the lower-court decision in that case.

Keeping quiet might seem the safer course, but judicial reticence can prompt complaints, too. During the confirmation hearings for John Roberts and Samuel Alito, many observers – myself included – expressed frustration at the nominees’ unwillingness to say more about their opinions on constitutional law.”

Prof. Roosevelt ultimately suggests that justices should rarely be heard but what they do say should be politically revealing:

Perhaps they should think twice before expressing those opinions. The appearance of impropriety is to be avoided like impropriety itself, says Canon 2 of the Code of Conduct. Simply disclosing political views should not make us think a judge is any less likely to act impartially, but some people will draw that conclusion. If the political expression amounts to advocacy, the conclusion may be justified. (This, presumably, is why Justice John Harlan II reportedly said that Americans should never see a judge leaving a voting booth.) And even if not, extreme political views may cause readers to question a judge’s temperament.

On the other hand, there is something to be said for knowing judges’ political views. With that knowledge, we are much better able to tell whether those views drive their decisions. We should not be surprised that judges have politics outside the courtroom. But we should demand that they have principles inside it.”

Even more interesting are Prof. Roosevelt’s thoughts that prefaced his conclusion. He seems to suggest that justices should speak freely about their “provisional” views but need not feel bound to keep their word. You be the judge:

“So are judges saying too much or too little? The answer, I think, is a bit of both. Consider first the confirmation hearings. The nominees generally stood on the principle that it would be improper for them to express opinions on matters that might come before the Court.

This is probably true with respect to particular cases that have been filed or whose filing can be foreseen. Canon 3A(6) of the Code of Conduct for United States Judges admonishes them not to comment publicly on the merits of a pending or impending case, though the canon exempts scholarly presentations from that ban and the code does not apply to Supreme Court justices. But it is not true with respect to particular legal issues. Nominees should not promise to rule a certain way, nor should they feel bound to adhere to statements made during confirmation hearings. But there is no good reason nominees cannot describe their current, provisional, views of particular constitutional issues.”

Prof. Roosevelt generously lectures the justices on legal ethics:

The supposition that such comments are improper may stem from a failure to distinguish between cases and issues. Prejudging cases before reading the briefs and hearing arguments is wrong. Every litigant is entitled to a fair opportunity to convince a judge, and without hearing argument the judge cannot be sure which issues a case presents or on what facts it might turn. Prejudging issues is not wrong; it is the result of legal education and experience. A judicial nominee with no opinions on legal issues is not impartial but rather unqualified.

Moreover, with respect to cases and issues alike, it matters far more whether a judge has opinions than whether he or she reveals them. A judge who is inappropriately biased against a particular litigant does not cure the problem by hiding the bias, and one who appropriately holds opinions on legal issues does not cause a problem by discussing them.

What have we learned today, class?

— Conservative justices should speak out more but (presumably like their liberal brethren) they don’t have to mean what they say.

— If they don’t speak out that may mean they have no opinions and they’re unqualified.

— One who “appropriately holds opinions on legal issues” can speak freely, i.e., some biases are good!

I don’t think Prof. Roosevelt means this (at least I hope he doesn’t) but his essay leads to a wrong impression – so much so that I can’t help but wonder: “Can Prof. Roosevelt attack conservative justices and still be a fair law professor?”


10 Responses to “Law Professor Concerned when Clarence Thomas Speaks Freely”

  1. Can Ruth Ginsburg support this Democrat congress and still be a fair justice?

    Good question, but guess what, they’re all people and have opinions. It would be absurd if the most intelligent and accomplished people in our society paid to write opinions didn’t have any.

    However, when the case is before them they are paid to put their opinions aside and look at the facts, the law, and the Constitution.

    Christoph (92b8f7)

  2. Well, Kermit is just wrong. I can’t wait to start reading the book. Justice Thomas has led an exemplary life, overcoming great hardship, daring great and suceeding. This is a testiment to his character and our great country that provides the oppurtunity to suceed. These are the kind of people we want to be judges.

    Hammer (d671ab)

  3. “However, when the case is before them they are paid to put their opinions aside and look at the facts, the law, and the Constitution.”

    Why is it so hard for politicians and law professors to understand that concept? Projection?

    buzz (5612a5)

  4. Methinks TR & TR Jr are rolling in their graves over Kermit’s nonsense. Does KR comment on recent books by other sitting members of the court?

    DaSarge (1d2f46)

  5. Imagine the political gamebook that would be created if this idiotic law professor’s ideas were taken to heart?

    Insult a prospective justice to such an extreme degree that no reasonable person could ever be expected to put aside the assault with respect to the parties involved and their ideology.

    Then claim the Justice can no longer be fair because of what you did to them.

    wls (fb8809)

  6. Another one of those wackos who wants to silence decent against the liberal fascists

    krazy kagu (5006b4)

  7. Has Professor Roosevelt ever questioned Justice Ginsburg’s right to regularly insult conservatives and Republicans?

    Ken Hahn (7742d5)

  8. I wonder if this guy is familiar with the writings of one William Douglas.

    Crank (af4dca)

  9. This … person is the scion of the distinguished Roosevelt family?

    Living proof of regression to the mean, I suppose.

    Kevin R.C. 'Hognose' O'Brien (88bf29)

  10. Kermit is a judge, my how the frog’s have regressed.

    Thomas Jackson (bf83e0)

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