Justice Stevens abruptly retires to spend more time on his prize-winning rose and orchid garden. The President nominates me to replace him. (A fine choice, I think we can all agree).
During my confirmation hearing, in response to questioning from Senators Leahy and Kennedy, I say: “Yes, I have an opinion on Roe v. Wade: it was poorly decided. Regardless of what we as a nation believe the correct public policy on abortion is, the Roe case was not the way to reach that goal; it created a constitutional right out of whole cloth. If we truly believe that women should have the right to an abortion during the first trimester, it’s for your counterparts, Senators, in each state to craft that right into law. There are no words in the federal Constitution that can be fairly read to create a women’s right to have an abortion, period.”
Despite my forthright approach, I am confirmed, 51-50, with the Vice-President casting the deciding ballot on a bitterly divided Senate.
In my first term as a Justice, the Court hears a challenge to a state’s onerous abortion restriction law. Pundits and commentators on the left begin to suggest Justice Bricker should recuse himself from hearing the case, pointing to my confirmation testimony as evidence that I cannot approach the issue with the required neutrality.
I call you for advice, saoirse. “What do you think I should do on this recusal question, saoirse?” I ask.
I would say that the first point is to reverse the effects of previous and ongoing discrimination.
(I also suspect that you just might underrate the ongoing effects of previous discrimination, but we would probably wind up just having to agree to disagree, there.)
My advice is to tell them to go to hell. Although, why you’re asking me, since I opposed your confirmation, is anyone’s guess. I don’t see why you would have to recuse yourself, since your colleague Justice thomas claimed to have no fixed opinion on Roe, and everyone knew he fibbing when he said it. In fact every member of the court arrived with an opinion on it.
I would point out to you that it’s probably your own fault for not saying, “I don’t think it would be appropriate to comment on that.” I would certainly not think you’d have been better off saying that you had never discussed it, since you have.
Bricker, my advice, pro-choice as I am, would be to not recuse. Recusing because of a conflict of interest, yes. Recusing because your legal opinion on the case doesn’t jibe with another person’s legal opinion on the case, no. That’s not what recusal is for.
Basically, if the pro-choicers can’t keep you out of the big comfy chair in the first place, they can’t second-guess your legal decisions except through promotion of either legislation or a constitutional amendment, except in the case of egregiously bad behavior, in which situation they can impeach you if they can get the votes. But an opposing legal opinion on abortion rights is not egregiously bad behavior.
The part of point #2, which seems to be missed by altogether too many people, is why admits or new hires get a boost. It’s not necessarily because they “need” it or “deserve” it, but rather because of their place in the employment or admissions marketplace.
That is, they are inherently desirable to the organizations who have embraced the idea that racial/ethnic diversity makes a better environment. Whether or not one agrees with that premise, it’s an important factor in why some employers or institutions act as they do. It’s a supply and demand issue. Some people are simply considered desirable because of what they may presumably add to the environment, and unfortunately they may also be in relatively short supply. That ‘what you can add’ may be because your Dad’s rich and generous, or because you can play the hell out of the cello, kick ass on the football team, or make the place less monolithic in terms ethnicity, geography, income, background, or whatever.
It ain’t all about “disadvantage” or sympathy. Which you seem to know; thanks for answering my tangential question.
It’s as silly to try to avoid the question as it is to lie about it. The question IS appropriate for a confirmation hearing. The hearing is all about how this candidate is going to rule on the bench, his/her philosophy of jurisprudence, his/her experience and connection to current and historic case law, his/her depth of knowledge about law. Anything that’s interconnected to this is appropriate, so questions about Roe v. Wade are appropriate and should be answered truthfully. If the makeup of the Senate is such that answers that disagree with the majority of the Senators’ beliefs in this area guarantee a rejection, then so be it. But you don’t try to game the system. That perverts the entire purpose of the system.
Questions about Roe v. Wade are appropriate. Questions about whether or not you smoked marijuana as a college student (in the 60s, no less!) are silly. We seem to have reversed those priorities in the last 20 years…
Well, I have to admit you’re right: the far better approach would have been to take the Ginsberg Method and say, forthrightly, it’s not appropriate to answer the question, as I may be called upon to rule on the issue in the future.
The practical problem with that approach is that it makes confirmation hearings a somewhat empty exercise.
But I cannot in good conscience say I favor a lie under oath in any circumstance.
I don’t remember the details, but what I do remember is that he had made a speech about his opinion before the case even went before the court. In that situation, I don’t really know. It would depend on whether or not he thought that his pre-opinion would be impossible to sway by review of the actual case and argument before the court. In an ideal world, he could be trusted to make that decision (whether to recuse or not) fairly. In this world, I don’t know if anyone (not just Scalia) can be trusted to make that decision fairly.
I’ll make no bones about the fact that I’m rather eagerly looking forward to Scalia’s departure from the Court, hopefully during a Democratic presidency. I would hope it would be by retirement, because I don’t hope for his death.
Of course, Bricker knows I have no legal training at all. Just as a disclaimer for those who don’t know that (not that I think my babbling has fooled anyone), this is all from my layman’s understanding of judicial ethics, so I have no expert claim on this situation.
An alternate question is that if she was such a histrionic hypersensitive problem-child as he claims, why did he take her with him when he transferred? It’s not like she could have sued him for racism.
Not in direct response to the above, but I’m always irked at the question “why did she wait 10 years to come forward?” In the first place, she told people about the harassment while it was happening (and anyone who remembers the early 1980s remembers that “sexual harassment” wasn’t a buzzphrase then- hell, there were jokes about sexually harassing their employees on sitcoms), and she didn’t “come forward”- she was asked by a FBI agent doing a background check, told him in confidence about the harassment, and her comments to him were “accidentally leaked” to the press.
It’s funny, because with Scalia on the court, you may be sure how he’ll rule – whether he agrees or not with the result as a matter of wisdom or good social policy, he’ll rule baseed on the written law involved.
Other justices, who see the law as an instrument of social change, may seem like a better choice for you… as long as they agree with the kind of social change you want. But I suspect, if we get a justice on the bench who’s willing to find “emanations” and “penumbras” beyond the text of the law… and who actively pushes a path you don’t like… you might find yourself longing for the good ol’ days of Tony Scalia, who let the legislature make the law instead of the court.
The problem of what judges can and should say about past precedent is a vexing one. The Supreme Court looked at the issue in 2002, in Republican Party of Minnesota v. White, 536 U.S. 765 (2002). Minnesota’s canon of judicial conduct forbid judges or candidates for judicial office from announcing any view or commentary on any legal or political issues that might come before him, or any comment on settled issues of law except an affirmance of stare decisis. And Minnesota elects its judges.
The Supreme Court tossed out Minnesota’s rule as a violation of the First Amendment.
Interestingly, the opinion in this case was authored by… Tony Scalia.
I’m a frequent defender of Scalia, but this is a little bit exaggerated.
Even *he *says he doesn’t follow his own philosophy all of the time. He admits in “A Matter of Interpretation” that his brand of textualism doesn’t have the answer every time (though he argues that it limits the options most of the time). And he further admits that even he doesn’t follow his brand textualism every time, but says that his own failures shouldn’t undermine the correctness of his approach.
I think you also caricature the philosophies of the other members of the court. An aspirational view of the Constitution may be a lot of things, but I don’t think it can be reduced to ruling on good social policy instead of the written law.
Seems more likely he is bitter over having his name justly dragged through the mud. In any event, Ms. Hill does not spend her time wandering the countryside making derogatory comments about Thomas, so if he wants to have people think well of him, perhaps he should not make it a specific point to drag her name unjustly through the mud when she was doing nothing to attack him.
Assume, for the sake of argument, that Ms. Hill was entirely untruthful in her testimony and related commentary about Thomas, and that Mr. Thomas was entirely truthful in his statements concerning Hill and his dealings with her.
