August 11, 2004

CODE OF JUDICIAL CONDUCT

Okay, everybody remember Miguel Estrada? He was an immigrant from Honduras nominated by Bush to the DC Circuit Court of Appeals - considered a stepping stone to the Supreme Court. Estrada was blocked by Senate Democrats for political reasons, but they claimed he was not forthright in their answers. This was the catch-22 of judicial politicsa, however.

More on that in a second, but first Chuck Schumer. Schumer misleadingly said that Estrada failed to answers questions put to him, but the interest of Senator Schumer in the nomination is clear in that, unlike many of his colleagues, he failed to ask any written advance questions. He didn't ask questions because he didn't care and he knew Estrada would be unable to answer any questions.

The reason Estrada could not answer their questions is simple. The fifth canon of judicial ethics prohibits Justices from voicing their opinions on matters that might reasonably come before them. Scalia ran into this problem when he made statements on the pledge of allegiance case a few months or so before it came to the Court. He was very clear on what he thought, and so he recused himself. The part of the canon in question is thus:

"(1) A judge or judicial candidate shall not make statements that indicate an opinion on any issue that may be subject to judicial interpretation by the office which is being sought or held, except that discussion of an individual's judicial philosophy is appropriate if conducted in a manner which does not suggest to a reasonable person a probable decision on any particular case."

In other words, a Justice cannot answer the kinds of questions Senators ask. Politicians ask who's pro-life, who's pro-choice, who's this or that, where are you on guns, affirmative action, etc. If a Justice came up and declared herself to be pro-life, pro-gun and anti-affirmative action then she could not rule on those cases. Conversely, if she holds back then the Senators block her confirmation. It's the catch-22 of judicial politics.

This is why every sitting Supreme Court Justice refused to answer similar questions in their hearings. The pack of liars in the Senate conveniently forgot this point, of course. If the Justices and judges currently in the federal court system had answered these questions then they'd all have to recuse themselves or face ethics charges and impeachment. Such lies, the Senators blocked Estrada for political reasons and then blamed his silence. He answered tons of questions, especially advanced written ones, he simply could not compromise judicial ethics.

Of course, try to explain to Senators about ethics and you'll get blank stares or vacant nods. They especially wouldn't understand how shutting the hell up could ever be a good thing.

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