At his Senate confirmation hearings in 2003 for a seat on the federal court of appeals, Supreme Court nominee John Roberts politely and smoothly stonewalled. Other than calling Roe v. Wade“settled law”—a statement of fact—he said little else about contested issues, sticking with the mantra that as an appeals court judge, he would apply Supreme Court precedent. And he refused to name three standing Supreme Court decisions of which he was critical.
Taking the “judicial Fifth,” as such demurrals are known, has become the tedious standard practice. (Unfortunately for the Democrats, Justice Ruth Bader Ginsburg did her share of it when it was her turn at bat.) The justification for the judicial Fifth, as Roberts put it at his earlier hearings, is that questions about past cases or legal principles are “an effort to obtain a forecast or a hint about how a judge will rule in a particular case.” But the calculation that determines what a nominee should or shouldn’t say is tactical, not legal or ethical. Nothing in any legal code or judicial canon of ethics supports the broad stance against answering questions. And no one has stated this more clearly or forcefully than Justice Antonin Scalia, in a 2002 Supreme Court opinion.
The public statements of federal judges are guided by the Code of Judicial Conduct, which instructs judges and judicial nominees or candidates not to discuss the merits of “pending or impending” cases. More broadly, the code warns judges and aspiring judges not to do anything that could create an “appearance of impropriety.” This has been interpreted—especially by cautious confirmation-seekers—to mean that nominees and candidates should not say anything about current legal or political disputes, or past Supreme Court decisions that remain good law. The idea is that aspiring judges should avoid the appearance of currying favor by giving clues as to how they might someday rule.
But Scalia demolished this position in Republican Party v. White, a 5-to-4 decision in which the court’s conservative wing struck down a Minnesota law that barred judicial candidates from “announcing” their views on contested issues and allowed a GOP candidate for the Minnesota Supreme Court to speak freely. White involved judicial elections rather than appointments. The underlying rationale for Scalia’s opinion, however—that prospective judges should explain their views so the people choosing them know what they’re getting—applies both to a popular vote and a vote in the Senate.
In musing about the meaning of judicial “impartiality,” Justice Scalia concluded that the best definition is “equal application of the law,” or the guarantee that a judge will rule the same way in a given case no matter who the person standing before him happens to be. “It is virtually impossible to find a judge who does not have preconceptions about the law,” Scalia continued. That doesn’t pose a problem because it’s not what judicial impartiality means. Judges are entitled to preconceptions: In fact, preconceptions are a requirement for being a competent judge. As Chief Justice William Rehnquist wrote in a memorandum that Scalia cited in White, “Proof that a Justice’s mind at the time he joined the [Supreme] Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.”
Scalia’s crucial insight in White is that it’s a fiction to pretend that judicial nominees don’t hold thought-through views on the difficult issues of the day and groundless for them to obfuscate those views based on an appeal to ethical canons. There’s nothing improper about talking about a judge’s own decisions as long as they’re no longer pending on appeal, or about other past cases that are settled law. That goes for cases like Roe and for Lawrence v. Texas (striking down state anti-sodomy laws) and Grutter v. Bollinger (upholding the University of Michigan’s affirmative action program) and Zelman v. Harris (upholding voucher programs that include parochial schools).
Scalia supported another definition of judicial impartiality in White: open-mindedness. Nominees often equate keeping quiet with being open-minded; the theory is that the less they say, the less pressure once they’re on the bench to make rulings consistent with their previous statements. But Scalia said that to be open-minded a judge must make every litigant feel that he has “some chance” of winning, not an “equal chance” of doing so (his italics). And he pointed out that whatever nominees like Roberts do or don’t say once they’re before the microphone, they usually have long written records that betray their views. Roberts wrote nearly 50 published opinions on the D.C. Circuit, many of them tame but a few controversial. No one argues (not successfully, anyway) that a judge is biased in a future case because of a ruling he or she previously handed down, even if the reasoning in the first case makes the outcome of the later one seem more or less inevitable. (Roberts also wrote dozens of legal briefs as an appellate lawyer; the question of whether the Bush administration should release documents related to the work he did as deputy solicitor general for President George H.W. Bush is a whole different story.)
The virtue of Scalia’s limited definition of impartiality is that it recognizes a basic American free-speech principle: More speech is better. Nominees should talk because what they have to say is informative and useful, a classic example of discussion of civic issues in the public arena that gets the highest form of First Amendment protection. But if judges are going to give up the judicial Fifth, then the Senators questioning them also need to give up exploiting their every off-the-cuff comment to score unearned political points. Judges shouldn’t stonewall. Senators shouldn’t demagogue.
There also remains a line that nominees should not cross, related to the standard set by the judicial code. Roberts shouldn’t talk directly about the decision he joined earlier this month in Hamdan v. Rumsfeld, the ruling that gave the Bush administration sweeping powers to try terrorist suspects before a special military tribunal that does not include basic rights of due process. Hamdan is headed for an appeal to the Supreme Court, which means that it’s still a pending case and so fits into the narrow ban on judicial speech that makes sense for preserving the appearance of impartiality. Roberts would also be on solid ground in refusing to comment on the Supreme Court’s 2000 decision to strike down state laws that bar partial-birth abortion, for example, because Congress passed a parallel partial-birth abortion law last year that is likely to come before the court in the near future.
But the questions that Roberts refused to answer in 2003, like the one about past Supreme Court decisions that he thinks are wrong or flawed, lie far beyond the code’s limited exceptions to speaking freely. The testimony that Roberts will give before the Senate is his job interview. That is not a time for refusing to answer every pointed question. And there’s no legal or ethical reason why it should be.