1. SCOTUSblog - January 16, 2006 at 11:38 am

   Blog Round-Up – Monday, January 16th

   The Court issued its opinion in United States v. Booker a year ago last week. This week the Legal Affairs Debate Club asks, “What is the future of sentencing?” Debating are, Douglas Berman, William B. Saxbe Designated Professor of Law…

2. Anonymous - January 16, 2006 at 12:16 pm

   Another reason: The hearings are often more about the Senators than the nominees.

3. John Steele - January 16, 2006 at 12:28 pm

   I’m not quite so pessimistic about the hearings. I expected the worst, but by the time all the witnesses had spoken and the questioning was done, I’d learned a tremendous amount of information about Alito, his history, his record of opinions, etc. I also got a feel for his personality and psychology. It’s true that the blogosphere had anticipated much of that, but didn’t the prospect of contested hearings drive much of the blogging? Would we have in-depth blogging if hearings aren’t held? Besides, it’s one thing to read about a man and it’s another to see him speaking hour after hour.

   I was mostly disappointed in the senators’ abysmal skills in asking questions. Leaving aside Specter and Feingold, the senators need a refresher course on how to ask questions. If the Democrats wanted to shake things up a little, they should have known about 30 minutes into the hearings that they needed to change the pace with some rapid leading questions. Alito’s style — the slow, “issue smothering” approach — is a well known witness-type and the techniques for dealing with that are also well known.

4. Mike Dimino - January 16, 2006 at 1:28 pm

   The reason the hearings are so useless is the persistence of the canard that judicial impartiality will be compromised if nominees answer questions about legal philosophy and application of that philosophy to past cases honestly and directly. Interestingly, the Left persists in promoting this ideal on the state level, where it doesn’t want to have judges screened based on criminal justice, while the Right does the same thing on the federal level because they don’t want judges screened on privacy and abortion. Either way, however, the criticism is without force: judges have their opinions regardless of what is revealed in the hearings, and public discovery of those views does not make the judge partial.

5. Simon - January 16, 2006 at 2:08 pm

   My usual meme is that the Roberts and Alito hearings presented a perfect encapsulation of why the Seventeenth Amendment should be repealed, but assuming that to be a pipe dream, I can’t help but wonder: if we are all agreed that the hearings as currently constituted aren’t working, isn’t it reasonable to conclude that either they’re a waste of time and should be abandoned, or we still think that the hearings are worthwhile, but the format isn’t working and should be changed?

   I would submit that what’s primarily wrong with the hearings, above all else, is the posturing and preening by the Senators, which squashes any possibility of an honest colloquy with the nominee (the biggest issue, of course, is Roe, but even if a pro-choice Senator privately harbored doubts about the Constitutionality of that case, because of the succesfull Democratic strategy of conflating being pro-choice with being pro-Roe, to question the case is to commit the apostasy that dare not speak its name). Perhaps one possible solution, is to simply hold all hearings in camera, and release only transcripts?

6. Jeremy Pierce - January 16, 2006 at 2:26 pm

   Right or wrong, the “canard” about judicial independence is a fact. If Alito said more, he would have been forced to recuse by current ethical standards about forecasting votes ahead of time.

   It’s certainly true that most of the information in the hearings was publicly available ahead of time, but most people don’t do internet research but might hear or watch part of the hearings. I do think they play a role in educating the public about the nominee, getting the public to see the nominee talking about important and unimportant issues, and understanding how slimy some of the senators can be.

7. Simon - January 16, 2006 at 3:15 pm

   Jeremy:
   

   Right or wrong, the “canard” about judicial independence is a fact. If Alito said more, he would have been forced to recuse by current ethical standards about forecasting votes ahead of time.

   If that were taken seriously, wouldn’t most of the members of the Supreme Court except the Chief Justice have had to recuse themselves from Ayotte? I mean, does anyone seriously have any difficulty forecasting the probable votes of Justices Scalia, Thomas, Souter, Breyer and Ginsburg? Why would it be the case that Alito would have to recuse himself from an abortion case if he had declared that there is no Constitutional right to an abortion, when Scalia and Thomas have said unequivocally that there is not, and Ginsburg, Souter, Kennedy and O’Connor that there is yet they do not recuse themselves from such cases? I wonder: was there anyone clamoring for Justices Marshall and Brennan to recuse themselves from every death penalty case, since it was patently obvious that they would attempt to overturn the sentence of death on any grounds, in any case, no matter what.

   I think that Senator Feinstein has said in both recent hearings (proving the theory that even a person who is usually wrong is sometimes right) that, why would it be different to know before a Justice’s confirmation precisely what we learn about most of the Justices fairly shortly after their confirmation?

   While every judge should be expected to keep an open mind as to the merits of an individual case, surely it is not absurd to suggest that a Justice does not have a view of which rights are and are not in the Constitution? Schumer pressed Alito: why can you say there’s a right to free speech in the Constitution yet you refuse to say whether or not there’s a right to abortion in there? The answer is obvious: because the only answer is that there is no such right, but if Alito says that, welcome to filibuster country, and that – for better or worse – isn’t the GOP’s strategy. I would prefer that we were honest about it, personally.

8. Dave - January 16, 2006 at 3:28 pm

   The hearings were empty for one reason: the Senate and the Presidency are controlled by the same party. Alito did not have to answer questions, so he didn’t. If the Senate had 55 or 60 Democrats instead of 55 Republicans, then things would have been different. It’s as simple as that. Moreover, this isn’t necessarily a bad result under our Constitution. One of the benefits of successfully appealing to the American public in a series of elections is the ability to appoint Supreme Court nominees with relatively less oversight.

9. John Steele - January 16, 2006 at 4:23 pm

   Jeremy puts his finger on one of the paradoxes of judicial ethics: what counts as impermissible bias may depend upon the candor with which the judge describes his or her thinking.

   When Scalia publicly scoffed at the Pledge of Allegiance case, he doomed himself to recusal. If Scalia had privately scoffed at the case, or had mentioned it publicly in a neutral way, he could have stayed on the panel and voted against it, so long as he felt he could judge the case with appropriate impartiality.

   That might strike you as a less than satisfying distinction, or even an absurd distinction, but it’s how it’s done. The rule turns to a significant degree on the public’s perception of fairness.

   Perhaps you’d make the larger point that recusal would be appropriate because, regardless of any public comments by the judges, the public already knows how all those judges are likely to vote in many cases. But that may prove too much, because under that approach any judge with identifiable tendencies could be recused.

   So I think you’ve identified the paradox, but it’s not clear to me that there’s a better way to handle it than how we currently do.

10. Simon - January 16, 2006 at 4:45 pm

    John,

    Is it possible to hold the view that the First Amendment prohibits the Congress from abriding the freedom of the press, yet to not recuse oneself from a case where Congress has banned Guns & Ammo magazine? I mean, sure, you haven’t analyzed the facts of the individual case, but surely, the fact that one has read the First Amendment should not demand recusal?

    Why would the pledge of allegiance case be any different?

    And for that matter, why was it the fact that Scalia had said in a speech that occaisioned the demands for recusal? If he hadn’t given the speech, would anyone have demanded his recusal from the case – and if not, why not, given that he did not say in his speec anything more than precisely what he had already intimated in the pages of the U.S. Reports:
    

    In Barnette we held that a public school student could not be compelled to recite the Pledge; we did not even hint that she could not be compelled to observe respectful silence — indeed, even to stand in respectful silence — when those who wished to recite it did so. Logically, that ought to be the next project for the Court’s bulldozer.

    Lee v. Weisman, 505 U.S. 577, 639 (1992) (Scalia, dissenting). Surely, nobody can read that dissent and come away with the impression that Scalia thinks the Pledge of Allegiance violates the Establishment Clause. So why did it only matter when he gave a speech about it?

11. John Steele - January 16, 2006 at 5:13 pm

    Simon, when I called my description of the key distinction a “paradox,” I essentially conceded the logic in your 4:45 pm post.

    But, still, there is a certain wisdom in the current approach. Let’s assume that Scalia set out prospective view X in a public speech and has clearly anticipated it in a majority opinion. (For partisan parity, we could also consider Brennan and Marshall’s opinions stating that they’d vote against the death penalty 100% of the time.) The public speech leads to recusal because those remarks aren’t made under the discipline of the judicial process; they aren’t made after reading the new set of briefs, considering the new opinions bubbling up from below, and hearing the new arguments of counsel at oral argument. Although the majority opinion might lead us to predict the judge’s views no less accurately than the public speech, because we deem the opinion to have been made under the judical process it isn’t disqualifying for the judge. We conclude that the public perception of the judge’s impartiality cannot be tainted by a valid judicial ruling — but can be tainted by sharply phrased public speeches. Moreover, the opinion (unlike the speech) is subject to a post-issuance discpline in that other judges will cite it, adopt it, distinguish it, etc., and the opinion will have to prove itself over time through usage by other judges.

    Given your prior post, I don’t expect you to buy that as a normative argument even if you do accept it as a factual description of an unsupportable distinction that is often made. But let’s turn it around. If we adopt the other argument, then at some point Brennan, Marshall and even Blackmun would have been recused from all death penalty cases — which would seem to make recusals an obstacle to any realistic system of judging.

12. Beltway Blogroll - January 17, 2006 at 7:27 am

    The Irrelevance Of Confirmation Hearings

    George Washington University law professor Daniel Solove has painted an ugly but accurate picture of the “ritual” of Supreme Court confirmation hearings after last week’s sessions for Judge Samuel Alito. “[T]he nominee must say that he’ll have an open …

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