July 14, 2005

Schumer's Judicial Ignorance

I've blogged before about Schumer's idiocy with regard to judicial nominees answering questions. In the Miguel Estrada business he claimed that Estrada was not answering questions (which is weird, given that Schumer, unlike fellow Senators, declined to exercise his privilege to ask Estrada written questions before the hearings and receive detailed written hearings; other Senators did so). Now Schumer is arguing that that the impending nominee should be asked and have to answer direct questions about specific cases and issues almost certain to come before the Court.

Schumer wants them to answer questions because he wants to either get them on record as being 'too extreme' and supporting Republican answers or get them on record as supporting his answers and thus use that testimony to beat them over the head if they happen to change their minds in actually ruling (it might go to impeachment). This is of course speculation, but it's also due to the arrogance of Senators (who tend to think that their deliberative functions are the end-all be-all of American governance) and the simplicity of politicians. It's especially boneheaded given that Schumer went to Harvard Law.

Apparently he never learned a thing about judicial ethics - even though any idiot can find the federal judicial canon of ethics with a google search. There is a large body of thought regarding what judges can and can't do and what obligations are placed upon them in order to further both the appearance and existence of impartiality.

The relevant portion of the federal canon of judicial ethics is from the third canon, part A6:
    A judge should avoid public comment on the merits of a pending or impending action, requiring similar restraint by court personnel subject to the judge's direction and control. This proscription does not extend to public statements made in the course of the judge's official duties, to the explanation of court procedures, or to a scholarly presentation made for purposes of legal education.
The short explanation is that a judge that states a position on a disputed issue coming before the court sacrifices the appearance of impartiality and betrays its non-existence. This is not a rule to be taken lightly; judges that run afoul of this rule recuse themselves from the proceedings, as Justice Scalia did after he made comments regarding the pledge of allegiance case that showed his bias.

Every Justice currently on the Supreme Court refused to answer such specific questions when asked them and the Democrats risk running close to hypocrisy if they try to use it as a way to block a SCOTUS nominee.

I do not believe that Senators are bound by any rule of ethics to ignore the political biases of themselves or of the nominees. I think Senators should be willing to vote down nominees of unacceptable political bent (if it's okay to vote down extremists like Nazis or pro-Confederates for political views, it's okay to do so on other issues closer to the mainstream). But Justices should not answer questions about issues almost certain to come before the Court and they should not be voted down for refusing to give unethical responses.

For all the bitching about history, precedent and the filibuster, you'd think Schumer (a guy who loved playing up the save-the-filibuster stuff) would have an ounce of interest in preserving explicit judicial ethics. An impartial judiciary is more important than requiring 60 votes to confirm judges and more ingrained in our history. If only political opportunism were on his side, Schumer would be up in arms about the need to protect judicial impartiality.


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