Democratic
Senators blocking an up or down
vote on the confirmation of Miguel
A. Estrada to serve on the U.S.
Court of Appeals for the D.C.
Circuit repeatedly invoke the
mantra that it is unacceptable
to allow the confirmation of that
"stealth" nominee. But does a
"stealth" nominee for judicial
office necessarily equal an unacceptable
candidate? The voters of Wisconsin
seem not to have thought so.
The accusation that Estrada is
a "stealth" nominee strikes me
as absurd for any number of reasons.
Foremost on my list is the fact
that the Senate knows as much
or more about Estrada's views
as it knew about the views of
most of the other federal appellate
court nominees who have been confirmed
during George W. Bush's presidency.
And to the extent that Senators
serving on the Judiciary Committee
can legitimately claim that the
nominee hasn't answered questions,
it tends to be because the questions
themselves are out of bounds.
I won't go so far as Senate Judiciary
Committee Chairman Orrin G. Hatch
(R-UT), who last week accused
one of his Democratic colleagues
on the committee of asking "dumb-ass
questions." But my observation
is that when a controversial nominee
is before the committee, Senators
likely to vote against the nomination
use much of the limited time allotted
for questioning the nominee to
read a speech denouncing the nomination.
Then, in what little time remains,
such Senators will ask a stem-winder
of a question that ends up demanding
to know the candidate's position
on issues likely to come before
the court for a ruling.
There are plenty of ways to ask
questions to learn about a judicial
candidate's philosophy of judging
that don't require the candidate
for an intermediate appellate
court to answer the entirely irrelevant
question of whether
Roe
v.
Wade was properly
decided or which U.S. Supreme
Court decision the candidate despises
the most. Of course, U.S. Supreme
Court decisions that remain good
law bind intermediate appellate
court judges as precedent whether
those judges agree or disagree
with the outcome.
Some of the more outrageous procedural
tactics underway in the U.S. Senate
-- including the use of filibusters
against multiple intermediate
appellate court nominees, the
refusal to bring nominees on for
confirmation hearings on a timely
basis, and the continuing blockade
of all four nominees to the Sixth
Circuit from Michigan as payback
for how the Republicans treated
President Bill Clinton's Sixth
Circuit nominees from that State
-- are enough to give one a newfound
appreciation for alternative methods
used to select judges serving
on state courts.
No doubt the most controversial
method for selecting state court
judges remains the use of elections.
On the plus side of the ledger,
elections produce results: someone
wins, and someone loses. On the
negative side of the ledger, judicial
elections tend to suffer from
voter apathy. And there's the
very real perception that money
given to candidate for judicial
office will produce improper favoritism
toward donors after a judge wins
election.
Some eleven months ago, my June
2002 column predicted (correctly,
it just so happens) the outcome
of a case then pending before
the U.S. Supreme Court presenting
a challenge to a regulation that
prohibited candidates for elected
judicial office from "announc[ing]
his or her views on disputed legal
or political issues." The Court,
by a 5-4 margin, ruled that the
regulation violated the First
Amendment. As a result, candidates
for judicial office are now free
from that regulation's strictures.
In early April 2003, the State
of Wisconsin held a general election
to fill a vacancy on the Supreme
Court of Wisconsin. Two sitting
lower court judges ran for the
office. One freely announced his
views on abortion rights and school
choice programs. The other refused
to disclose her personal views,
contending that it would improperly
allow litigants to call into question
her impartiality if she won the
election. As a result, the first
candidate condemned his reticent
opponent as a "stealth" candidate
for judicial office.
Notwithstanding her stealthiness,
Wisconsin's electorate ended up
voting onto that State's highest
court the candidate who had refused
to disclose her views on the most
controversial issues presented
in the campaign. What if any lesson
is to be learned?
Social scientists legitimately
warn against drawing broad conclusions
from just a single data point.
But sometimes a single data point
is all one needs to prove a hypothesis.
For example, someone who suffers
just one especially painful paper
cut -- a significant career hazard
for appellate lawyers -- feels
no qualms drawing broad conclusions
from the experience.
The lesson I draw from Wisconsin's
recent judicial election is that
being a "stealth" candidate for
judicial office is not automatically
disqualifying. It underscores
the point that while the U.S.
Supreme Court's recent ruling
gives candidates for elected judicial
office the right to speak about
disputed legal or political issues,
it doesn't require them to do
so.
My prediction is that it will
be easier for a candidate to stay
silent if her adversary is advocating
unpopular positions, but it will
be much more difficult to remain
silent if her adversary is telling
the electorate precisely what
it wants to hear. Staying silent
in the latter circumstance might
cause the tight-lipped candidate
to be perceived as opposed to
the popular positions that her
adversary is advocating.
It is most ironic, though, that
a stealth nominee for the Supreme
Court of Wisconsin proved acceptable
to the voters of that State, one
of the Nation's most liberal,
while in the U.S. Senate being
portrayed as a "stealth" nominee
causes the candidate for judicial
office to be fair game for an
endless filibuster, no matter
how objectively wonderful his
qualifications happen to be.
* * * * *
Just over one week ago, Edward
R. Becker's tenure as Chief
Judge of the U.S. Court of Appeals
for the Third Circuit came to
an end. It is questionable whether
enough superlatives exist to
capture the extraordinary service
that he provided to advance
the goal of justice during his
tenure as Chief Judge.
Chief Judge Becker understood
that delivering justice means
more than simply reaching the
correct results in the cases
under consideration. His successful
initiatives to eradicate Judgment
Orders that affirmed the decision
on appeal without explanation
and to provide easy online access
to the Court's non-precedential
decisions were especially praiseworthy.
He also led the Court to resume
oral arguments in Newark, New
Jersey and Pittsburgh, something
for which lawyers based near
those locations remain deeply
appreciative. And the Court's
efforts under his stewardship
to promote public education
programs, and to renovate the
lobby of the Philadelphia Courthouse
to make it more welcoming and
educational, have further advanced
the cause and perception of
justice.
Congress by statute has sought
to provide that each of the
Nation's federal appellate courts
will always have a chief judge.
But Becker did much more than
simply assume a title. Through
his tireless work, he ensured
that the Third Circuit today
is a much better place in which
to be a litigant and to practice
law than it was when he assumed
the mantle of Chief. And for
that he has earned not just
my thanks, but also the thanks
of countless of my colleagues
at the Bar.
This
article is reprinted with permission
from the May 12, 2003 issue
of The Legal Intelligencer ©
2003 NLP IP Company.