Telephone justice, pandering, and judges who speak out of school.

• Author: Shepard, Randall T.

As Americans we pride ourselves on the rule of law and its sine qua non, an independent judiciary. In The Federalist No. 78, Alexander Hamilton described judicial independence as "an essential safeguard against the effects of occasional ill humors in the society." (1)

In the course of reaffirming the special role of judicial independence in our own society, we routinely decry the "telephone justice" practiced in some parts of the world. (2) Before the Berlin Wall came down, crimes such as "infringing on the activities of the state" served as "the fig leaves of a system that didn't disguise its real purpose: executing the wishes of the state's Communist Party leadership and their secret police." (3) Even as the world enters the twenty-first century, there are still nations where a judge can expect to receive a call from a party boss or security officer with orders on how to decide a case. (4)

While most would agree that such overt interference is the antithesis of judicial independence, these are the easy cases. The essence of telephone justice is decision-making on grounds external to the judge's own assessment of the law and the facts of a case. This evil may appear in many subtle guises. Judges must resist outside influence to maintain the uncompromised impartiality our offices require. There is more to looking outside the case and the law for direction then waiting for a call from the KGB or the Stasi. Judges face external pressures every day.

The temptation to pander to these external influences has never been greater. Federal judicial nomination and confirmation proceedings are openly political. (5) Judicial races are more expensive and hotly contested than ever before. (6) Media attention to court decisions has increased to the point where judges may attain celebrity status virtually overnight. (7)

The siren call of celebrity and career advancement (or, for that matter, simple preservation) is difficult to resist. The need for resistance is acute, however, against a backdrop littered with fakers--"Judge Judies" who are not constrained by the code of judicial conduct; people who tarnish the judiciary's standing with the public for purposes of financial gain. (8)

The first four sections of this article identify four permutations of telephone justice: pandering for confirmation, pandering to political pressure, pandering for votes, and pandering to the cameras. The final section tells the extraordinary tale that should perhaps go into the reporters as Judge Thomas Penfield Jackson v. Microsoft.

1. PANDERING FOR CONFIRMATION

   When the Senate considered the nomination of Thurgood Marshall in 1967, the popular consensus was that candidates for the Supreme Court should not disclose their positions on substantive law. As Senator Edward M. Kennedy then said, "We are not charged with the responsibility of approving a man to be associate justice of the Supreme Court only if his views always coincide with our own." (9) Senator Kennedy has since adopted a different approach to the proper role of the Senate, (10) and the nature of Senate confirmation itself has changed.

   Federal judicial selection entered the modern media era in 1981, when Justice Sandra Day O'Connor's confirmation hearings were covered live by radio and television. (11) When pressured by the media to state her position on certain issues, however, Justice O'Connor demurred:

   I do not believe that as a nominee I can tell you how I might vote on a particular issue which may come before the Court, or endorse or criticize specific Suprem[e] Court decisions presenting issues which may well come before the Court again. To do so would mean that I have prejudged the matter or have morally committed myself to a certain position. Such a statement by me as to how I might resolve a particular issue or what I might do in a future Court action might make it necessary for me to disqualify myself on the matter. This would result in my inability to do my sworn duty; namely, to decide cases that come before the Court. (12) Five years later, Supreme Court nominee Antonin Scalia was similarly circumspect. When Senate Judiciary Committee chairman Strom Thurmond asked Scalia if Marbury v. Madison "required the President and the Congress to always adhere to the Court's interpretation of the Constitution," Scalia answered, "I do not think I should answer questions regarding any specific Supreme Court opinion, even one as fundamental as Marbury v. Madison." (13)

   Two years later, however, nominee Robert Bork's confirmation hearings became the high-water mark for the grilling of a Supreme Court candidate. (14) In his effort to counter tough questioning by simplifying responses and speaking directly to the public, Bork ended up softening his previously stated positions so much that his credibility suffered. (15) Ultimately, he moderated his previous views so significantly that Senator Patrick Leahy described him as having experienced "confirmation conversion." (16)

   In the years following the Bork inquisition, the Senate has been less effective in its efforts to pin down Supreme Court candidates' views on contentious subjects. Justices Ruth Bader Ginsburg and Stephen Breyer "felt free to decline to disclose their views on controversial issues and cases.... Justices Kennedy, Souter, and Thomas ... rebuffed all attempts to explore their opinions of important principles and cases." (17)

   Although the Senate tempered its attacks in the latest Supreme Court confirmation hearings, we cannot assume that this comparatively restrained approach will continue. Recent presidential elections have focused heavily on each candidate's likely Supreme Court nominees, (18) and other federal judicial appointments have been the subject of much political gamesmanship. (19) As Justice Ruth Bader Ginsburg said, recent congressional attacks on judicial independence "can fairly be described as political hazing of federal judicial nominees." (20) Those who aspire to the federal bench cannot help but fear that every public statement will be philosophically scrutinized by political parties.

   The extent to which federal judicial candidates should disclose their views on legal issues has long been the subject of debate. At one end of the continuum are commentators who believe that the Senate's "advise and consent" function should be limited to determining that the nominee is of an acceptable moral character. (21)

   At the other end of the continuum are those who view confirmation by the Senate as the people's last chance to ensure that a potential judge-for-life is responsive to prevailing popular sentiment on important areas of law. (22) National Public Radio commentator Nina Totenberg argues that the Senate Judiciary Committee should require nominees to answer issue-specific questions as a condition of confirmation. Further, she lauded the Bork hearings as "a good example of effective questioning and informative discourse" in which "his views emerged with some clarity." (23) She claims that "[i]f ... a nominee has fixed views on a subject of settled law, claiming propriety as a reason for not being forthright with the Senate is just a ruse." (24)

   There is, of course, a middle group who would allow the Senate to explore judicial philosophy generally, but not insist upon being too specific. Proponents of such a limited senatorial inquiry agree with Justice O'Connor's position that a candidate who expresses a viewpoint on a contentious issue such as abortion or affirmative action may have prejudged future cases, at least in appearance, and possibly in reality.

   This is not the only problem that arises when judicial candidates speak out on specific legal issues. If acceptable stances on particular legal issues are a prerequisite for a federal judgeship, those who hope to attain those positions must weigh their ambition against their ethical obligation to remain impartial in both form and substance:

   Case-specific litmus tests for Supreme Court and subordinate federal court appointments should be ... assailed. Whether the test is applied by the President in searching for a nominee or by Senators in the confirmation process, it is a dagger at judicial independence. Supreme Court candidates of ordinary ambition will shade their views in order to pass political muster, and become intellectually "locked in" on a battery of controversial issues before they arise in actual cases and controversies where all sides are heard and debate ensues among the nine Justices. In sum, case-specific questioning of would-be or actual nominees is tantamount to political arm twisting to dictate the outcome of constitutional questions by the judicial branch. (25) In a similar vein, Chief Justice William Rehnquist wrote in Laird v. Tatum (26) that a judicial...