So I was watching the news this week, and I have stumbled across what is, at least to my non-lawyer mind, a legal ethics puzzle.
The Senate has been holding confirmation hearings on the nomination of Judge Amy Coney Barrett to the Supreme Court. And in response to many questions, she has declined to answer on the grounds that the subject of the question — climate change, the Affordable Care Act, or the limits of the Presidential pardon power — might come before the court.
Judge Barrett was similarly unwilling to engage Mr. Leahy on whether a president had an “absolute right” to pardon himself, as Mr. Trump has claimed that he does.
“That question may or may not arise, but that is one that calls for legal analysis of what the scope of the pardon power is,” she said, adding that she could not offer an opinion on a question that she could be called upon to rule on.
I keep hearing that this is a matter of judicial ethics, that it’s wrong for judges to express opinions about legal matters they may someday have to rule on.
But then there’s also this story about what Supreme Court Justice Clarence Thomas wrote in an order denying cert on a case involving Section 230 of the Communications Decency Act. Here’s a sample (reformatted, with internal citations omitted):
I agree with the Court’s decision not to take up this case. I write to explain why, in an appropriate case, we should consider whether the text of this increasingly important statute aligns with the current state of immunity enjoyed by Internet platforms.
[…]
This modest understanding is a far cry from what has prevailed in court. Adopting the too-common practice of reading extra immunity into statutes where it does not belong, courts have relied on policy and purpose arguments to grant sweeping protection to Internet platforms. E.g., R. Smolla, Law of Defamation (“[C]ourts have extended the immunity in §230 far beyond anything that plausibly could have been intended by Congress) […] I address several areas of concern.
[…]
To be sure, recognizing some overlap between publishers and distributors is not unheard of. Sources sometimes use language that arguably blurs the distinction between publishers and distributors. One source respectively refers to them as “primary publishers” and “secondary publishers or disseminators,” explaining that distributors can be “charged with publication.”
Yet there are good reasons to question this interpretation.
As I understand it, this is basically what lawyers refer to as dicta, i.e. judicial commentary on subjects not directly related to the specifics of the case in question. It doesn’t mean much, and it doesn’t establish much in the way of precedent.
Which leads me to my question: As I mentioned above, it would be unethical for Judge Barrett to comment on certain matters of controversy that might come before her if she were to be appointed to the Supreme Court. But isn’t that exactly what Justice Thomas is doing here? The case in question has been denied cert, so it won’t come before the court, but he’s talking about related matters that very well might, especially given current political discussions about Section 230.
In fact, Thomas ends his comments with a short paragraph that any marketing professional would recognize as a call to action:
Without the benefit of briefing on the merits, we need not decide today the correct interpretation of §230. But in an appropriate case, it behooves us to do so.
So not only is Justice Thomas discussing issues he might have to rule on in the near future, he’s encouraging parties to bring such matters before him.
I’m guessing this is considered ethical because (1) it’s all positioned as part of the commentary on the court’s denial of cert order, which is a legitimate judicial activity, and (2) Supreme Court Justices do this sort of thing all the time. If you follow legal issues, there’s always talk about how the Supreme Court’s ruling on some matter includes language which signals their willingness to consider certain related arguments on other matters, which encourages lawyers to put together cases the Court might find appealing.
I realize that there are plenty of legal differences between confirmation hearings and court rulings, but I’m not sure I can pick out the ethical difference between talking about possible future cases in confirmation hearings and talking about possible future cases in dicta.
This makes me think that one of these rules should be changed, and since the Supreme Court is unlikely to change its ways, I think the rules should be changed for confirmation hearings. Not just because it’s inconsistent, but because it’s probably a good idea.
When I apply for a software engineering job, the interviewers will definitely ask me how I would solve certain kinds of problems that I’m likely to run into on the job. However, if I get hired, and I run into a similar problem on the job, I won’t feel any pressure to solve it the way I said I would in the interview, because everyone understands that the real world is different from the world of interview hypotheticals. On the other hand, if I refused to answer those questions during the interview, they’d never hire me, because they need to know how I’d approach the job. It’s important information.
Frankly, it seems ridiculous that a dubious ethics concern prevents Senators from eliciting the same kind of information from judicial candidates.
My understanding is that jurists providing legal commentary outside of cases breaches judicial ethics, specifically canon 5, but SCOTUS justices, particularly progressive ones, have been egregious about violating the canon, because… They’re SCOTUS judges. What are you going to do about it? Truth be told, if ACB actually answered the questions, Democratic senators would probably whinge that ACB had violated judicial ethics, and that would be disqualifying.
The one avenue for real inquiry would be things that ACB had actually ruled on. There was a moment during the ACB hearings, a Democratic senator asked “You answered the questions on the X matter, from my Republican Colleague, but now you’re saying you can’t speak on the matter of Y, why is that?” And ACB’s answer was: “Because I wrote the opinion on X, but not Y.” There’s something to that, When a judge makes a ruling, the reasons why they make that ruling should be fairly clear and presentable in their mind. As an outsider looking in to a rhetorical situation, it’s impossible to predict all the nuances any case could give you, even real cases that you did not preside over offer the pitfalls that happen short of full discovery. And so answering questions about cases that either haven’t happened, or you were not a part of, is a great way to get caught up in some faux-outrage when a case with a little nuance presents itself.
Which is the basic premise Democrats, led by then Senator Joe Biden, used during the 1993 confirmation hearings for Ruth Bader Ginsberg, which was later coined as “The Ginsberg Rule”.
Biden began the hearing by noting that until 1955, with very few exceptions nominees didn’t testify during their confirmation hearings, and their record was considered sufficient. In fact, in 1949 a nominee was called to testify but refused and was still confirmed. Biden explicitly warned senators not to ask questions about how Ginsburg would decide any specific case that may come before her.
Ginsburg followed that plan, and it was probably politically expedient to cut those lines of questioning off at the root, because while Ginsberg was a great lawyer, she been also been a radical activist. Her record as an ACLU litigator placed her far outside the mainstream of American law. She had argued for legalizing prostitution, against separate prisons for men and women, and had speculated that there could be a constitutional right to polygamy. All of which we might shrug at now, but in 1993 we were still in the don’t-ask-don’t-tell days.
And despite that warning, there were still all kinds of opportunities for Ginsberg to invoke that idea during her confirmation; At one point, Senator Leahy asked about religion clauses of the First Amendment. Ginsburg responded: “I prefer not to address a question like that.” Leahy followed up by asking for her interpretation of Supreme Court precedent on the subject, and Ginsburg responded “I would prefer to await a particular case.”
Later, Senator Thurmond asked whether Ginsburg thought states could “experiment with and provide for diverse educational environments aided by public funding.” Ginsburg refused to give an answer: “Senator Thurmond, that is the kind of question that a judge cannot answer at-large.” The senator asked a narrower question about the “constitutionality of some form of voucher system.” Ginsburg replied, “Sen. Thurmond, aid to schools is a question that comes up again and again before the Supreme Court. This is the very kind of question that I ruled out.”
This is not new. This is not particularly complicated. Unless the entire Democratic caucus has dementia, not only are they aware of this, they were the founders of it.
Thanks for the interesting history lesson. I knew it didn’t begin with the recent Republican nominees, but I didn’t realize it started the way it did.
My own gut feeling is that testimony by nominees is useless if they aren’t willing to discuss basic job interview stuff: The way they are planning to approach the job, and how they might handle certain potential issues they might run into. It might be simpler to go back to the no-testimony rule.
I’m in favor. We learn nothing from these circuses.