Has anyone seen a transcript of Justice Kennedy’s testimony April 12, 2005 before the House Appropriations Committee? This is inspired in part by Left Hand of Dorkness’s thread here, which, despite the apparent good intentions of many involved, including the OP, seems to have been sidetracked (or derailed entirely).
During Kennedy’s recent testimony about the Supreme Court’s budget, it appears several issues were raised, including internet access at the court:
So, first: any sign of the transcript? And, second, any clue as to the basis for DeLay’s purported outrage that Kennedy would do his own research on the internet?
I have no idea why DeLay would find it outrageous that Kennedy would do research on the Internet.
Now we are getting into IMHO (or GD or PIT) territory but in my view DeLay is absurdly, embarassingly out of line if he is in fact criticizing Justice Kennedy for doing research on the Internet.
The story you link to does not give details (and this is the first I’ve heard of this) but this just seems like DeLay lashing out to distract everyone from his own troubles.
The only rational explanation I can think of is this:
Kennedy relied on sources outside US law for an opinion. Those sources included international law; and Kennedy also said he conducts research on the internet. As we all know, the internet contains information that is both factual and information that is, to put it politely, counterfactual. By conducting research on the internet, one can fall prey to serious misinformation (see, e.g., Pierre Salinger). Kennedy’s reliance on sources other than US law, including international law and the internet, therefore, is outrageous.
DeLay has no education as a lawyer, and may believe he is speaking to a public who views the internet as he likely does, a hotbet of rumor, insinuation, and the occasional tidbit of truth. To attorneys (and likely to judges, too), the internet is viewed as a tool that has created significant efficiencies in the ability to do work, in light of the numerous legal sources that can be found better and faster on the web.
So it may simply be my disconnect with DeLay’s view of the internet. I’ve done book research, and I much prefer the internet for most of my research because it is faster and more accurate.
But I’d like to see the transcript of Kennedy’s testimony “in session” to determine what he actually said about how he uses the internet. I’ve looked for it briefly but haven’t turned it up, and was hoping that someone else had seen it.
I got really curious about this, so I went here to see what I could find. It states that the House Appropriations Committee does not produce electronic versions of its hearings. Therefore, the only way to get a transcript would be to order a printed copy (but I don’t know where to go for that).
It does state here that Justice Thomas testified on April 12.
If you read the Fox article carefully, it doesn’t imply that Justice Kennedy testified before the committee. Apparently, DeLay plans to ask the committee to get Kennedy to testify in the future, and there must be other venues in which Kennedy made statements cited by DeLay. But we don’t know from the Fox article what the cites are. (Note that DeLay is not on the committee but no doubt exerts some influence on its agenda.)
Which doesn’t surprise me, as political innuendos go.
The plot thickens. Thanks for the links. Why doesn’t the committee’s website note that Justice Kennedy also testified that day?
From the April 14, 2004 Legal Times article linked in the OP:
LivingInThePast, the Fox news article is substantially similar to that posted at CNN.com. Both articles attribute substantially the same quotation to DeLay, and both are similarly devoid of context or explanation. You’re right that the Fox article doesn’t state that DeLay’s comments are based on Justice Kennedy’s April 12 testimony before the committee.
I inferred that they were, however, for several reasons. First, Supreme Court justices, outside of the cases they write, are quoted very rarely, but Justice Kennedy has been in the legal news quite a bit following the April 12 testimony. Second, DeLay linked his outrage over the Justice’s “in session” testimony regarding internet use for research to his outrage over the Justice’s purported reliance on principles of international law. Third, during the April 12 testimony, the Court’s use of the internet came up (see Justice Thomas’s quotation in the OP), and Justice Kennedy’s purported reliance on international law came up. More specifically, Rep. Todd Tiahrt (R. Kan.) criticized Justice Kennedy’s reliance on international law (registration required). Notably, Justice Kennedy did not respond directly, but apparently made comments debate over the nature of an independent judiciary is healthy for a democracy. Taken together, I inferred that DeLay’s reference to Justice Kennedy’s comments “in session” referred to testimony during the committee session.
Ah, well. If the transcripts aren’t posted, we may never know. But I find it strange that DeLay is the only one raising this issue. Had Justice Kennedy made some truly outrageous statement (“I go to magic8ball.com to help me decide cases!”), some legal reporter somewhere would have reported it. Or so I would like to believe.
Was it the internet use that DeLay was upset by, or the fact that Kennedy admitted he was doing his own research? Some judges take the view that they will only rely on precedents that counsel have cited in argument, and that the opposing counsel have been able to respond to in argument.
The idea is that the judge should not be conducting independent research and possibly deciding a case on something that counsel are unaware of: it’s not fair to decide a case on that point unless both counsel have had equal opportunity to comment.
Not all judges view this issue that strictly, of course. Some take the view that they can follow up on lines of cases that counsel have cited to them; others may be even more free-ranging.
Would Supreme Court Justices be allowed to refer to law books? Decisions in past cases that have come before the Court?
I can’t imagine Justices on the SCOTUS being limited to staring at a copy of the Constitution and trying to reason things out, but I am not trained in the law.
What used to be confined to law books is now available at reliable legal websites. Physicians have similar access to official medical sources. We shouldn’t infer that researching the law on the internet is in any way haphazard anymore than researchng the law in books is. (It’s possible that that is what is being implied, however.)
Northern Piper, you are correct that most judges rely on the arguments made to them by counsel in rendering decisions. While an appellate court can affirm a trial court on any ground (i.e., the trial court reached the right result but for the wrong reason), a trial judge is not supposed to decide a case based on a theory not advanced or argued by counsel.
I have not seen any explanation made by DeLay as to what he meant. Parsed out, it’s an interesting sentence: “he said in session he does his own research on the internet.”
Perhaps he should not be doing his own research; perhaps he should rely on his clerks. Perhaps research is okay, but should not be done on the internet. Perhaps he should not be on the internet when he is “in session.” (Although this last I think is not really what DeLay meant – I don’t think Justice Kennedy would have referred to oral argument as being “in session,” and if Justice Kennedy is on the internet when the Court is in chambers, that’s Chief Justice Rehnquist’s problem, not America’s. I think DeLay said “in session” to indicate that Justice Kennedy made the comment while in session – i.e., testifying in the house appropriations committee session.
Zoe, you’re right that judges look at precedent as well as the Constitution. Otherwise, they’d be reinventing the wheel every time, and there’d be no guarantee that two identical cases would come out the same way (well, there still isn’t, but the odds are higher). The principle of stare decisis requires that courts abide by previously decided cases, so the fact of a justice researching the law isn’t novel.
So who knows what DeLay meant? I’m trying to find the source, because that may shed some light on the issue. But I’m beginning to feel like I’m hunting a griffin.
LivingInThePast, you rock. Except I can’t get the page to load, so I am going to assume that everyone else in the world is watching it right now, and pray that I can get on tomorrow. But, as I said before, you rock.
I thought the problem might be with the URL, so I went back to C-SPAN. If you do a search on “Kennedy Thomas appropriation” (without the quotes), you will get two hits. But neither one of them works today.
Maybe there’s a conspiracy theory in there somewhere?
