Like gangsters taking the Fifth, nominees for federal judgeships now have their reason for staying mum down to a mantra. Repeat after me: "My view of the judicial function, Senator, does not allow me to answer that question." Miguel Estrada, President Bush's nominee for the D.C. Circuit Court of Appeals, used variations on that one many times in refusing to express any opinion on any important legal topic during Judiciary Committee hearings last fall. Democrats are now trying to block the Estrada nomination with a filibuster.
Estrada's "view of the judicial function" is shared by President Bush, congressional Republicans, and conservative media voices hoarse with rage that Democratic senators want to know what someone thinks before making him or her a judge. The Estrada view is that judges should not prejudge the issues that will come before them. As Estrada amplified in his testimony, "I'm very firmly of the view that although we all have views on a number of subjects from A to Z, the job of a judge is to subconsciously put that aside and look at each case … with an open mind."
Obviously, Estrada's real reason for evasiveness is the fear that if some senators knew what his views are, they would vote against him. However, this kind of high-minded bluster is a powerful weapon in the ongoing judicial wars. Over the past couple of decades, talk like this has intimidated many a senator who aspires to a reputation for thoughtfulness. And it does sound swell. Until you think about it.
Potential judges should not reveal their views on legal issues because a judge should have an open mind? Hiding your views doesn't make them go away. If the problem is judges having views on judicial topics, rather than judges expressing those views, then allowing people to become judges without revealing their views is a solution that doesn't address the problem. And if the problem is judges who fail to put their previous views aside, rather than judges having such views to begin with, then allowing judicial nominees to hide those views until it's too late is still a solution that is logically unrelated to the problem.
So, Estrada's Rule of Silence does not solve the problem. And the supposed problem—of "prejudging"—makes no sense either. To see why, consider—or reconsider—Justice Clarence Thomas. In his 1991 confirmation hearings, Thomas testified that he had no "personal opinion" about Roe v. Wade, probably the most controversial Supreme Court decision of the 20th century. In 1992, Justice Thomas joined in a minority opinion calling for Roe to be overturned. By 2000 he was writing that the Roe decision was "grievously wrong" and "illegitimate" and part of "a particularly virulent strain of constitutional exegesis" and generally not something he cared for the least little bit.
This does not prove that Thomas was lying under oath in claiming that he hadn't prejudged Roe in 1991 (though no reasonable person could doubt that). It does prove that Thomas had prejudged Roe in 1992. But this is a point that Justice Thomas needn't bother to lie about since no one objects. It's perfectly OK for a sitting judged to have and express views about an issue that comes before his or her court. That is his job.
In fact it's inevitable that anyone who has been an appellate judge for a while will have published opinions that touch on many of the issues he or she must decide in the future. There is not even an expectation of open-mindedness. Although a willingness to reconsider your own assumptions is regarded as admirable, no one is accused of prejudging a case just for ruling the same way this year as last year. Quite the opposite: Intellectual consistency is the hallmark of a fine legal mind. And following precedent is a sign of judicial professionalism.
Most legal rulings come from judges who have been on the bench for a while. If that is not a problem, why is it a problem if they have thought about and reached conclusions on some important legal issues before they join the bench? The answer is that it is not a problem. It ought to be a problem if a potential judge has not thought about important legal issues and has no views on them. But instead, the problem is how to keep a judgeship candidate's opinions hidden until he or she is safely confirmed for a lifetime appointment, and the phony issue of "prejudging" is a strategy for doing that.
Judgeship nominations bring out the hypocrite in politicians of both parties, but the Republican hypocrisy here is especially impressive. When Bill Clinton was appointing judges, the senior Judiciary Committee Republican, Sen. Orrin Hatch, called for "more diligent and extensive … questioning of nominees' jurisprudential views." Now Hatch says Democrats have no right to demand any such thing. President Bush fired the American Bar Association as official auditor of judicial nominations because the ABA gave some Republican nominees a lousy grade. Now Hatch cites the ABA's judgment as "the gold standard" because it unofficially gave Estrada a high grade.
The seat Republicans want to give Estrada is only open because Republicans successfully blocked a Clinton nominee. Two Clinton nominations to the D.C. Circuit were blocked because Republicans said the circuit had too many judges already. Now Bush has sent nominations for both those seats. Hatch and others accuse Democrats of being anti-Hispanic for opposing Estrada. With 42 circuit court vacancies to fill, Estrada is the only Hispanic Bush has nominated. Clinton nominated 11, three of whom the Republicans blocked.
I could go on and on. Which is just what Senate Democrats are doing.