Home -> Law Blog Directory -> Legal Commentary Blogs -> Balkinization

Legal Commentary

: Balkinization

Is Candor From Judges Dead?

By Jack M. Balkin

David is puzzled (below) at my previous post suggesting that judicial candor will be a casualty if Sotomayor?s nomination is derailed by her statements that judges occasionally make choices which are influenced by their backgrounds. Candor cannot be a casualty, he says, because it is already dead. ?Most scholars and commentators? agree that ?candor has not been a positive characteristic for Supreme Court nominees for quite some time,? according to David. For this reason, David does ?not begrudge Chief Roberts for saying that judging is like calling ?balls and strikes.??

Unlike David, I don?t believe judicial candor is dead?far from it. Exhibit A is Judge Richard Posner, whose 2005 review of the Supreme Court was entitled ?A Political Court.? But let?s put Posner aside, because everyone thinks he is exceptional in his candor. He is not. Here are a few other examples (of many), going back a hundred years:

Federal Circuit Judge Charles Amidon, on the short list for the Supreme Court, observed in 1907 that Supreme Court cases, which ?so frequently stand five to four,? are ?frequently decided not upon the language of the Constitution, but upon conflicting notions of life. Given the ?wide latitude for judicial construction, the court in construing the Constitution is exercising a political power second only to that of the convention that framed the instrument.?

Justice Horace Stern of Pennsylvania remarked in 1937 that ?we must, if realists, recognize that courts controlled by a ?conservative? personnel and those dominated by a ?liberal? membership are more than likely to decide constitutional questions from different angles and with different results.?

Justice Walter Schaefer of Illinois in 1955 wrote that ?There is nothing new in the notion that the personality of the judge plays a part in the decision of cases.? Federal Judge Calvert Magruder observed in 1958: ?How far the Court should go involves an exercise in judgment. Over the long years the Supreme Court, because the changes in its membership, has oscillated between the right and the left.? In 1963, Circuit Judge Charles Clark observed that sometimes the law does not point toward a clear answer, and in those cases the judge ?is on his own for the ultimate result which must reflect his background, his personality, and his inner conviction.?

Plenty of contemporary judges have exhibited similar candor. Judge Kozinski, as I noted previously, observed that judges ?do in fact have considerable discretion in certain of their decisions.? Judge Harry Edwards stated that ?it may be true that [in a subset of legally uncertain cases] a judge?s views are influenced by his or her political or ideological beliefs.? Judge Patricia Wald offered ?a ho-hum reaction to the notion that judges? personal philosophies enter into their decisionmaking when statute or precedent does not point their discretion in one direction or constrain it in another. In such cases personal philosophies may well play a significant role in judging.?

It is important to note that not one of these judges (and literally dozens more who have said the same) was skeptical about judging, and none questioned the integrity of judges. They were simply being honest about the process.

Justice Roberts' assertion that judges call ?balls and strikes? is embarrassingly short on candor in comparison to the above statements by judges. David absolves Roberts from criticism because he was simply adhering to the standard playbook for gaining a seat on the Supreme Court. That is no doubt correct. (Unlike Sotomayor, Roberts, in a more calculated fashion, was careful to not speak too candidly about judging before cameras or in writing.)

It might also be said, however, that Justice Roberts did a disservice to the American public?that he treated people as fools who are incapable of grasping the more complex reality?by not being more honest about the fact that judging, certainly judging on the Supreme Court, is not like calling balls and strikes (except in the narrow sense that judges and umpires alike strive to rule in a neutral fashion).

So we can simply accept that candor about judging from judges is dead, at least for any judge with aspirations to be on the Supreme Court, as David suggests is the case. Or we can collectively resist this conventional wisdom. Judge Sotomayor should be applauded for her candor about judging, and Justice Roberts criticized for his failure to be more forthcoming. Her honesty should count in her favor, and the failure to be forthright should count against a candidate. That was the point of my post.

Of course, Judge Sotomayor should be closely examined in her confirmation hearings on the content of her judicial philosophy. Precisely because she has spoken and written candidly about her views on these matters, there is an ample record to go on. In that sense she should serve as a model.

Full post as published by Balkinization on June 01, 2009 (boomark / email).