Judicial Reticence and Logic
The song and dance about judicial reticence is pretty absurd. It may seem I’m a bit late to the party in pointing this out, but I’m sure the issue is going to come up again soon anyway. Especially if the next Justice isn’t as clean-cut and as easy a pass as Roberts.
I’ve been reading through the transcripts of Roberts hearings, and the degree to which he refuses to answer questions is pretty clear. Of course, if one of the fundamental rules of the interview is that you can’t answer hypotheticals on what might come before you, of course you’d expect to see a lot of that.
But does this make sense? Let’s look at the logic.
-Justices shouldn’t make decisions based on their policy positions. Those positions should not matter.
-If a Justice strongly held a policy position, they might rule in ways that were not strictly due to law or facts at hand, but bias.
-A plaintiff shouldn’t have to worry about that when going before the court.
Which boils down to “a Justice’s policy positions should be irrelevant” and “it’s bad to know those positions”. If they’re irrelevant, why does it matter? If Roberts is the legal-positivist who only follows what the statues say, why does it matter if I know he hates abortion or loves affirmative action? That’s not what he should be ruling based on anyway. If he isn’t a loyal strict-constructionist and instead will invent policy material, then dear lord I want to know his policy positions right now!
The answer is that nominees (be them Roberts or Ginsburg) just don’t want to answer questions. Which is a legitimate political desire. That doesn’t mean they should be immune from questioning or Senators should respect their political desires.
And who believes that these justices are going to be legal positivists? It’s in fact the really important political cases where the justices seem to be the worst, and everyone knows it anyway. Bush v. Gore, or Cheney’s recent snafu with the Energy Taskforce. Who here thinks Roberts wouldn’t have sided with Bush in BvG? And yet is there any more important realm for judicial neutrality than administering the election of new leaders?