an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The Growing Effort of Conservative Christian Groups to Vet Judges At Every Level
The efforts of conservative Christian groups to seat federal judges who share their relgious/moral views have been widely reported in the press. At a private conference in March 2005, attended by Senate Majority Leader Bill Frist and then House Majority Leader Tom DeLay, evangelical leaders discussed a plan to "work with congressional Republicans to achieve a judiciary that sides with them on abortion, same sex marraige, and other elements of their agenda." Tony Perkins, head of Family Research Council, stated "For years activist courts, aided by liberal interest groups like the A.C.L.U., have been quietly working under the veil of the judicial bench, like thieves in the night, to rob us of our Christian heritage and our religious freedoms."
It is less well known that the same effort is taking place nation-wide at the state level, where the majority of judges face some form of election. An increasingly common tactic of conservative Christian groups, described in this report, is to send all judges (at every level) a questionnaire, the results of which are then posted or mailed to selected voters.
A typical version of this is the Florida Family Policy Council's 2006 Statewide Judicial Candidate Questionnaire. Among other loaded questions (like, favorite Supreme Court Justice?), are the following:
8. Do you agree with the following statement? "The Florida Constitution recognizes a right to same-sex marraige."
9. Do you agree with the [Florida Supreme Court's ruling invalidating a Florida law that required parental consent before a minor child can undergo an abortion]?
10. Do you agree with the [Florida Supreme Court's ruling upholding a statute prohibiting assisted suicide]?
11. Do you agree with [a federal district court ruling upholding a Florida law prohibiting homosexual adoption]?
12. Do you agree with [a Florida Supreme Court decision invalidating Florida's educational voucher program]?
Three Florida Supreme Court Justices declined to answer the questionnaire on the grounds that they are prohibited from expressing an opinion that could be interpreted as a prejudgment on an issue they might later be confronted with. The Florida Family Policy Council then sued to have those sections of the state judicial code declared unconstitutional.
When critics of this vetting practice argue that judges' personal or political views should not be considered in elections, the routine response is this (offered by the attorney for FFPC):
James Bopp Jr., a Terre Haute, Ind., lawyer who vets questionnaires for a number of interest groups, says he expects judges to be impartial and rule solely according to the law. But, he says, judicial candidates should be permitted to express their views on various issues.
Of course the only point of such questionnaires is to identify and seat judges with a particular set of views in the hope (and expectation) that they will interpret the law in a manner consistent those views. The "we expect judges to rule solely according to the law" response is charade, although the very fact that they feel the need to recite it is a telling indication of their awareness that there is something wrong in what they are doing. After all, if it is wrong when the left and liberal judges do it, then it is still wrong when the right and conservative judges do it.
As these groups know, judicial elections are easier to swing than regular political positions because fewer voters register votes on judges on the ballots, out of indifference or a lack of knowledge about the judge. A "get out the vote effort" by a committed group can therefore be disproportionately effective.
What's at stake here is bigger than the liberal/conservative political divide: it is whether judges will be seen and treated in purely political terms, and whether, consequently, they will become purely political actors, operating under the guise of ruling solely according to the law.
The good news is that the overwhelming majority of judges failed to respond to the Florida survey, or responded but declined to answer the above questions. This poor response rate indicates that the judges, at least, recognize that questionnaires of this sort pose a threat to the integrity of the task they have sworn to uphold. Perhaps the Florida Family Policy Council, and other groups engaged in similar efforts (left and right), will reflect upon the message sent by the mass refusal of the judges to answer, and come to the decision that this is not the right way to further their agenda.
THe judges who refused to be surveyed are just smart and assertive. It isn't really anyone's business, and certainly not individuals who want to narrow who becomes a judge. It an anti-democratic impulse, and I'd call it crypto-fascist.
I can certainly understand the claim that judges shouldn't reveal their positions on issues that might come before them. However, to declare that asking a candidate for elective office, no matter what that office, to respond to a survey is "undemocratic"?
Bwah ha ha!
The problem is that it's too "democratic".
The bigger problem is that the distinction between policy making and judging has already been effectively destroyed, and in a democracy, the public is perfectly entitled to elect, and question in advance of the election, anybody aspiring to a policy making position.
So I say, ask 'em the questions, and if they refuse to answer, let them be defeated at the polls. The doctrine that judges shouldn't reveal in advance their position on potential cases is of a piece with their discarded role as impartial umpires enforcing rules other people create.
It has no place in a judiciary where judges feel free to have opinions as to which side of public contraversies should prevail, and act on those opinions.
This is an important topic. There needs to be, in this internet age, an online way to read judges' published opinions; that would clear away the mystery at the ballot box. In our fairly urban county often one needs to connect to the grapevine in the political party in which one is registered in order to find out why a certain judge is nominated for a gubernatorial appointment, or which judge has an irrascible demeanor on the bench or off the bench.
There is a tension here, because much of a judge's best work is accomplished behind the firewall of guaranteed privacy and security.
The rightwing part of the Republican party is entitled to do its due diligence in our democratic ambience.
But we need better ways for voters of less zealous stripe to access a broad array of information produced by and about judges at the county level.
I suspect it will take a state's legislation somewhere in the US to launch the kind of online presence which has the scope and specificity that I contemplate here.
In our region recently there was a lady judge depicted in the newspaper as trying to hide or diminish a driving under the influence citation. To me it was a tempest in a teapot; I was more curious to learn about her jurisprudence and the lives she affected from her place on the bench. But incidents like those are what newspapers publish. The ad hominems and ad mulierems become content for the media; but there is more substance in a judge's character than the pecadilloes.
I am curious as to what injury in fact The Florida Family Policy Council claims so as to establish its standing to litigate the constitutionality of the restrictions on judicial candidates' speech. This is not a situation, such as Republican Party v. White, wherein a judicial candidate wished to speak but was constrained from doing so. It does not appear that any willing speaker's speech has been chilled. What am I missing?
I can't speak to every group mentioned here, but I can tell you for a fact that Jim Bopp won't hesitate to lie because he lied directly to me about a complaint he filed a decade or so ago against the state of North Carolina w/r/t to some of its election laws. And I busted him on it in a front-page story the next day, although we didn't use the word "lie." (I guess there's one other explanation: He was too stupid to know what was in his own complaint.) Perhaps he thought I wouldn't actually bother to read his complaint to see if it said what he said it said, or something.
Anyway, if I were a potential judicial nominee, I would refuse to answer questions from any group connected with Bopp on the grounds that I couldn't trust him to relay my responses accurately and in context.
How do Duncan Kennedy, Mark Tushnet and Catherine MacKinnon (the formative influences of my legal youth) feel about your attempt to establish judges as something other than "purely political actors"? "Nonsense on stilts," maybe?