Sharpened Sen. Feingold still misses the boat on judicial ethics

Yesterday I ruthlessly mocked Sen. Russ Feingold (D-WI) for insisting, during Tuesday's confirmation hearing, that Judge and Chief Justice-nominee John G. Roberts, Jr. discuss the specifics of a still-pending case called Hamdan v. Rumsfeld. Judge Roberts quite properly refused to do so, citing off the top of his head the exact provision of the Code of Judicial Conduct that forbade him from doing so, Canon 3A(6).

I've just now reviewed the transcript and my TiVo'd recording of their follow-up exchange on Wednesday afternoon, however. And I've got to give Sen. Feingold (or more likely some young lawyer on his or the Committee's staff) credit: They made a good attempt at circumventing Judge Roberts' objection by carefully constructing a new question about a similar-sounding Global War on Terror case about which Judge Roberts had also declined to opine on Tuesday — the Supreme Court's recent decision in Hamdi v. Rumsfeld.

In the resulting colloquy, Sen. Feingold refers to Justice Scalia having recused himself from the Newdow case on the Pledge of Allegiance, which was almost certainly based upon his having earlier made ill-advised public comments before a Knights of Columbus gathering about that specific case while it was still pending in the Ninth Circuit. The Hamdi (not "Hamdan") case being over, though, Hamdi is no longer "pending or impending," and hence it isn't covered by Canon 3A(6)'s literal terms. And so based on this distinction between Hamdi and Hamdan, Sen. Feingold made a considerably more subtle and artful effort to extract detailed opinions that might be a basis for the senators to intuit how a Chief Justice Roberts would rule in similar cases presenting conflicting GWOT and civil liberty issues. (Sen. Schumer later played a variation on the same theme in his "cone of silence" rant, although he carefully gave Judge Roberts' no opportunity to respond fully.) Here's the transcript from Wednesday afternoon's discussion between Sen. Feingold and Judge Roberts (boldface mine; paragraph breaks also revised by me; and one "inaudible" reference, and a couple of other mistranscriptions, corrected by me based on my TiVo'd video):

FEINGOLD: I would like to revisit the Hamdi issue. I asked you which of the four opinions in the case of Hamdi v. Rumsfeld best approximates your view on the executive's power to designate enemy combatants. And you refused to answer that question because the issue might return to the court.

But I want to press you a bit on that. In Hamdi there were four different opinions. And by the way, I checked, because you mentioned Youngstown. And all four opinions cited the Youngstown Sheet and Tube v. Sawyer case. Both Justice Thomas' dissent, and Justice Ginsburg and Souter in concurring cited Justice Jackson's opinion in the Youngstown case, and they came to completely different conclusions. So your answer that you would apply that principle doesn't help me very much in understanding your view of this.

We know where all eight other members of the court stand on these opinions — in their opinions. They either wrote or joined one of them. Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court.

Of course, if a member of the court expressed a view outside of the court on a specific case that was headed to the court, that might be cause for a recusal, as Justice Scalia recognized when he recused himself from the Pledge of Allegiance case a few terms ago after discussing it in a speech.

But obviously, Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision.

So I guess I want to know, why are you different? I'm not asking you for a commitment on a particular case. I recognize that your views might change once you're on the court and hear the arguments and discuss the issue with your colleagues. But why shouldn't the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?

ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process. They confronted that issue with an open mind. They read the briefs presented by the parties and the arguments the parties presented.

They researched the precedents as a judge. They heard the argument in the case. They sat in the conference room, just the nine of them on the court, and debated the issues and came to their conclusions as part of the judicial process.

You're now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views.

The process of the opinion-writing — you can't — the opinion turns out, it doesn't write, you have to change the result. The discipline of writing helps lead you to the right result.

You're asking me for my views, you know, right here without going through any of that process.

FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?

ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice. The people who would be arguing in that future case should not look at me and say, Well, there's somebody who, under oath, testified that I should lose this case because this is his view that he testified to.

They're entitled to have someone consider their case through the whole process I just described, not testifying under oath in response to a question at a confirmation hearing.

I think that is the difference between the views expressed in the prior precedent by other justices in the judicial process, and why, as has been the view of all of those justices — every one of those justices who participated in that case took the same view with respect to questions concerning cases that might come before them as I'm taking here.

To which my reaction was: Oh, wow. What an incredible on-the-fly adjustment by Judge Roberts to an incredibly subtle shift in attack by Sen. Feingold! Explaining exactly why I had that reaction, though, is going to be difficult. Bear with me.

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Note that Judge Roberts' answer accepts the shift in Sen. Feingold's premise — and Judge Roberts no longer cited Canon 3A(6)'s prohibition against commenting on "pending or impending cases."

But there are other sources of judicial ethics in addition to the Code of Judicial Conduct, and the most prominent among them is Title 28, section 455(a) of the U.S. Code. It reads: "Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned."

Back in October 2003, I wrote a really long and detailed post — complete with eleven footnotes in addition to my normal copious hyperlinks! — about Justice Scalia's decision to recuse himself in Newdow. My bottom-line conclusion was that he was right to do so, but that he'd done it on the basis of Canon 3A(6), and not on the basis of section 455(a). Then in March 2004, I wrote another, shorter post discussing Justice Scalia's refusal to recuse himself in the Cheney duck-hunting case. There I believed that Justice Scalia was again correct, and that he indirectly confirmed that his recusal in Newdow was indeed on the basis of Canon 3A(6).

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I believe that Judge Roberts' refusal to be drawn into a discussion of Hamdi — and indeed of many, many other recent cases, and not just cases but issues — is not based on Canon 3A(6). Sen. Feingold's attempt on Tuesday to quiz him about the still-pending case, Hamdan, was one of the rare occasions during the hearings when Judge Roberts has shown even a hint of irritation, and that's because Canon 3A(6) provides such a (comparatively) bright-line test for when a judge's comments become unethical. Asking Judge Roberts to violate Canon 3A(6) so blatantly was, frankly, insulting. But all of his other refusals to comment and opine — to pre-judge, preview, pre-commit, or even hint at that — have been much more good-natured and, by Judge Roberts' own frank admission, based on his subjective evaluation of the "likelihood" of his being asked to rule on substantially those same matters in the future (either on the Supreme Court or on his existing seat on the DC Circuit bench).

As my longer post explained (in way too much detail), section 455(a)'s "might reasonably be questioned" standard is awfully expansive on its face. But there are a series of cases interpreting it fairly narrowly, some of which I cited and discussed. And some of those cases draw the same distinction that Judge Roberts did yesterday — between what a judge says while on the bench versus what he says while off the bench. What he's said from the bench can almost never be grounds by itself for disqualification or recusal, even if — as is often true with long-tenured judges whose views are well-known and consistent — the judge's pre-existing views make his biases and prejudices for or against a particular legal position quite obvious. Here's how I summarized and paraphrased those cases (emphasis in original):

In every single case, there's a loser and a winner. In every single case, the loser can point to something that the trial judge said from the bench which demonstrated "hostility" toward him or his case — even if it's nothing more than saying, "You lose." And when a judge has been on either the trial or appellate bench a few years, the potential for that kind of showing of "bias" and "prejudice" grows at a steady, inexorable clip. If it were permitted for statements from the bench to be a basis for showing disqualifying bias, judges would become increasingly subject to disqualification as they became more experienced, and the judicial system would collapse under the weight of disqualification motions. Because of this distinction, then, between on- and off-the-bench statements of opinions in the caselaw regarding disqualification, not even desperate death penalty lawyers move to disqualify Justices Rehnquist, Scalia, or Thomas on the basis of prejudice, even though you could make quite an argument that their statements from the bench demonstrate a strong predisposition in those cases; nor do state attorneys-general move to disqualify Justices Stevens on opposite grounds of implacable hostility to the death penalty.

Statements made "from the bench" not only have the virtue of being public, but in general the rulings that they're made in connection with are themselves reviewable on their merits. If the ruling proves to have been badly wrong, it gets reversed on appeal; if the rationale announced in an appellate opinion can't stand the test of time, it gets overruled. They are therefore precisely the class of statements least likely to give rise to either the perception or fact of hidden and uncorrectably unfair results. In short, there's nothing "artificial" about the distinction between on-the-bench and off-the-bench expressions of opinion.

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As for the line-drawing that Judge Roberts has done: He's making subjective decisions, but well-informed ones, that some legal issues and no longer "pending or impending" cases can't become a basis for his impartiality to reasonably be questioned because those issues aren't going to come up in the future. No state legislature is likely to outlaw condom sales to married couples, so Griswold and the specific issues it raised are relatively safe.

Might his guesses turn out to be wrong someday, using hindsight then? Sure. But that's not what's important. The question is whether today, when he's engaging in the discussion, either he or the senators think those are "hot" issues. If an issue is stale and cold — if we all think now it's unlikely to come up again, regardless of whether it actually does — then either a threat or a promise regarding that issue, made now in connection with Judge Roberts' confirmation, would be valueless. Sort of like Justice Scalia wrote about the value of the opportunity to sit in a duck blind in the freezing rain with Dick Cheney, if someone thinks a future Chief Justice can "buy" his confirmation just by promising to protect condom sales to married couples, they're delusional; that's not a "reasonable" basis for questioning his future impartiality.

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And yet, as Sen. Schumer later pointed out, federal judges and justices do in fact quite often give lectures or make speeches or write books or law review articles in which they discuss hot legal issues — including issues very likely to come before the federal courts — in considerably more detail than Judge Roberts has done during his confirmation hearings. They may avoid making specific promises or predictions. And normally, they're extra careful to stay away from specific "pending or impending cases" and thus to comply with Canon 3A(6); Justice Scalia's slip on the Pledge case was a rare screwup, one that he later acknowledged. But even if they're not discussing specific "pending or impending" cases, those lectures and speeches are likewise "extra-judicial" statements; they're not subject to the same checks and transparency as rulings from the bench; and they certainly tend to reveal, and to foster public perceptions about, the judges' and justices' biases and prejudices. So why don't they prompt frequent disqualifications? What's the difference between those statements and a nominee's statements during a confirmation hearing?

Here, too, I think Judge Roberts put his finger directly on the key distinction: In the Senate Judiciary Committee's hearing room, a nominee is giving sworn testimony while he's essentially at the senators' mercy. And within the way those terms in section 455(a) have been interpreted (albeit in other contexts) in the caselaw, that makes it more "reasonable" to "question" a judge's impartiality based on what he says there.

First: Oaths matter — to judges, oaths matter a lot. The public correctly perceives that oaths matter to judges. And thus what a judge says under oath creates a bigger public shock wave simply because it's under oath.

Second: Context and location matter a lot too. Simply in terms of weight and importance, what a nominee says under oath to the Senate simply counts for more than what he could ever say at a Knights of Columbus patriotic celebration, a continuing legal education seminar, a law school alumni banquet, or a memorial service. What's said to the Senate should and does have a bigger impact on public perceptions of the integrity of the judiciary and the judicial process.

But third, and most importantly of all, was the point Judge Roberts made briefly in response to Sen. Feingold, and then elaborated upon (immediately after the "North by Northwest" reference) after Sen. Schumer's rant was done: With respect to federal judges (who, as Judge Roberts patiently explained to Sen. Biden, don't stand for election), and also with respect to other lawyers and academics commenting in  those other off-the-bench but still-public forums, there's no reason to suspect pandering. There are not obvious incentives and opportunities for the striking of unholy bargains. The judge or the professor or the lawyer might be opinionated; he might even be badly wrong; but it's not especially likely, or likely to be perceived, that he's been bought based on what he's said in those forums. But when Sen. Schumer or Sen. Specter, or for that matter Sen. Brownback, quiz Judge Roberts in detail about Roe v. Wade and abortion rights, then the moment Judge Roberts started answering in detail with anything that even remotely smacked of previews, forecasts, hints, predictions, or pre-commitments, the room would begin to stink of quid pro quo, of wink and nudge, and even of outright bribery.

Promises of future performance in exchange for present votes — well, that's a staple of politics, but it's the opposite of justice under the rule of law. It's corruption. And simply put, that puts the Senate Judiciary Committee's hearing room at the absolute far end of the spectrum from the bench, with the Kiwanas or the Yale commencement address somewhere in the middle. Even when not about a specific "pending or impending case," the very same comment about a legal issue that might not tip the section 455(a) scale over to recusal when made at a cocktail party or a bar convention absolutely might tip the scale over to recusal, then, when made under oath during a Senate confirmation hearing.

Judge Roberts gets this. Sen. Feingold and Schumer either don't or, more likely, pretends that they don't. But average Americans just don't want their Supreme Court Justices to have sold their souls or their future votes in exchange for that lifetime appointment — and it's ultimately not much more complicated than that.