The Yale Law Journal


Questioning Ethics

01 Sep 2006

A Response To

Following Reva Siegel and Robert Post’s profound consideration of constitutional structure and democratic legitimacy, one hesitates to bring up something so pedestrian as the Code of Conduct for United States Judges. Still, legal ethics principles do have some bearing on the scope of Supreme Court confirmation testimony, and the Code is the most definitive statement we have about judicial ethics. As it turns out, the Code pretty much supports Siegel and Post’s position that judicial nominees may (and should) properly be asked to explain how they would have decided well-known Supreme Court cases.

Canon 4 of the Code strongly endorses the idea that judges should be able to speak freely about the law, stating that a judge may “speak, write, lecture [and] teach” about the law and the legal system, so long as she “does not cast reasonable doubt on the capacity to decide impartially any issue that may come before the judge.” Moreover, a judge may appear before a “legislative body . . . on matters concerning the law, the legal system, and the administration of justice to the extent that it would generally be perceived that a judge's judicial experience provides special expertise in the area.”

Those provisions are obviously broad enough to cover confirmation hearings. Equally obviously, there would be little point to speaking, writing and lecturing about the law if one could not express opinions. Who ever heard of a law teacher who was reticent to criticize (or less often, praise) past judicial opinions?

Consequently, a public discussion of the law—including criticism or affirmation of well-known cases—could not possibly be enough to “cast reasonable doubt” on a nominee’s capacity for impartiality, at least within the meaning of the Code. Otherwise, sitting judges would be more or less prohibited from teaching law school classes, or even appearing as guest lecturers. But what sort of statements would compromise impartiality? I have explained elsewhere that a nominee’s answers would violate the Code only if they evinced a settled intention to decide certain cases in certain ways, without regard to the briefs of the parties or the factual nuances of the litigation. Criticism of, say, Roe v. Wade (even a statement like Robert Bork’s observation that it “contains almost no legal reasoning”) does not, on my view, rigidly commit a nominee to particular outcome in future abortion rights cases, which will be decided on their own facts.

Canon 3A(6), however, additionally requires judges to “avoid public comment on the merits of a pending or impending action." An old case, of course, such as Griswold v. Connecticut or Baker v. Carr, is no longer “pending” by any conceivable definition. But what qualifies as in “impending” action? Is the term so expansive as to cover every conceivable future lawsuit? In legal dictionary terms, an “action” is a “civil or criminal legal proceeding.” Thus, an impending action would have to be—at least—a discrete controversy, with identifiable facts, that is poised for litigation, though not actually filed. A general issue—even a highly contentious one that might someday reach the Supreme Court—would therefore lack the defining characteristics of an action or proceeding until it was actually embodied in a definable controversy between known parties.

Nonetheless, many successful nominees have declined to express their views on previously decided, nonpending cases, arguing that the issues involved might arise again in the future. Sandra Day O’Connor, for example, stated that she could not discuss Roe v. Wade because “it is improper for me to endorse or criticize that decision which may well come back before the Court in one form or another.” Antonin Scalia went further, refusing even to comment on Marbury v. Madison because a future litigant might want “to come in and challenge” its holding.

Surely, the Code draws the better distinction, cutting off commentary only when it may affect specific litigants in determinate situations. Indeed, Justice Scalia seems belatedly to have accepted this principle. He recused himself in Elk Grove School District v. Newdow (the pledge of allegiance case), presumably because of his public criticism of the plaintiff’s claims. On the other hand, he participated fully in Lawrence v. Texas, even though he had recently been the keynote speaker at dinner sponsored by an organization opposed to gay rights.

And those were exactly the right choices. Having commented on a pending case (impending in the Supreme Court, as the cert petition had not yet been filed), Justice Scalia correctly disqualified himself. But any presumed antipathy to gay rights (if indeed that may be inferred from his acceptance of a speaking engagement) did not reflect on any particular case, and did not require his recusal in Lawrence.

Which brings us back to the Siegel and Post proposal. A discussion of “well-known cases,” including criticism or approval, need not cast doubt on a nominee’s ability to decide future cases impartially. Nor would it necessarily involve commentary on pending or impending cases. Future nominees may find it tactically advantageous to duck tough questions about endangered precedents, but they cannot find refuge in the Code of Judicial Conduct.

One further observation. Siegel and Post recognize that justices must, as a matter of due process, consider cases without prejudgment. But they dismiss this concern by comparing a nominee’s confirmation hearing testimony to a sitting justice’s previous rulings. In both situations, they assert, the individual may have “expressed . . . an authoritative opinion” about the relevant law that could be troubling to a prospective litigant. Thus, they argue that “there is no pertinent difference” between stating one’s views before the Senate Judiciary Committee and memorializing them in a judicial opinion. Either way, the justice may appear to have made up her mind.

In fact, there is a substantial pertinent difference that Siegel and Post do not address. Written opinions play an essential role in our judicial system. They inform litigants about the bases for the court’s decision, instruct lower courts on how to decide future cases, and allow citizens and government officials to conform their conduct to the requirements of the law. The judicial system, as we know it, could hardly function without expository opinions from Supreme Court justices. The benefit (to public appreciation of the law) far outweighs any cost (of potential prejudgment, either real or apparent).

No such rule of necessity applies to confirmation hearings. Explanatory testimony, of the sort proposed by Siegel and Post, would be salutary and helpful, but the judicial system could obviously get along just fine without it. We might applaud a sitting justice for announcing his settled intentions (recall Justice Blackmun’s dissent from the certiorari denial in Callins v. Collins: “From this day forward, I no longer shall tinker with the machinery of death”), but we surely do not expect that sort of commitment from a nominee.

There is really no good analogy between confirmation testimony and judicial opinion writing, and Siegel and Post’s proposal would be stronger without it.

Steven Lubet is Professor of Law at Northwestern University. He is coauthor of Judicial Conduct and Ethics (3d ed. 2000). His most recent book is Lawyers' Poker: 52 Lessons that Lawyers Can Learn from Card Players (2006).

Preferred Citation: Steven Lubet, Questioning Ethics, Yale L.J. (The Pocket Part), Jan. 2006,