Sunday, September 18, 2005

Elected, Appointed, and Confirmed

A member of the Minnesota judiciary wrote a letter to the editor questioning why Chief Justice nominee John Roberts should be able to decline to answer questions on cases that may come before the U.S. Supreme Court. The jurist cries fowl in light of the U.S. Supreme Court's holding in RPM v. White. Specifically, the letter posits that there is no difference between Roberts declining to express his views, and state court candidates being prohibited from expressing theirs.

The letter asks, " Can it be Justice Scalia's view that it is OK that candidates for state judicial election be put under pressure to reveal their views on disputed legal and political issues, but it is not OK for federal nominees? As I read the underlying rationale of White, a nominee to the federal courts should have no less a First Amendment right to speak than a candidate for state judicial election."

Ever helpful, SwanBlog would like to explain the difference:

1. The holding in White involved judges who were elected, not appointed. The Court specifically cited that fact and hinted that Minnesota may want to go to an appointed judiciary, where it could arguably enforce a prohibition on "announcing" views on disputed matters. The letter to the editor glosses over this important difference.

2. The litigants in the White case, as well as the Court, recognized the distinction between announcing views and pledging or promising to rule a certain way. Some may view the confirmation hearings as an attempt to get Judge Roberts to make such a pledge or promise.

3. The refusal of Roberts is not only consistent with previous nominees, but also consistent with the First Amendment jurisprudence in White. The First Amendment protects a candidate's right to say nothing, just as it protects the candidate's right to announce his or her views. Having a right to speak does not mean that one is required to speak. Consider the Supreme Court rulings that allow lawyers to advertise their services. Does that mean that all lawyers are required to run advertisements?


Blogger Derek Jensen said...

I'm not surprised to hear you are for Roberts. This is the same establishmentarian streak that led you to support Bob Dole in the 1996 primaries.

September 28, 2005 10:50 PM  

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