Slate's "Has-Been";

I've often found the arguments in Slate's new "Has-Been" column/blog (written by Bruce Reed, "who was President Clinton's domestic policy adviser, [and] is president of the Democratic Leadership Council and editor-in-chief of Blueprint magazine") to be rather puzzling. Here's the most recent example:

. . . The Post reports that in 1981, John Roberts sent a memo to Sandra Day O'Connor advising her to plead the 5th if asked about her views on legal questions. Roberts warned that answering questions would raise the "appearance of impropriety" and prejudice her views in future cases before the Court. . . .

[I]f it's improper for future Court justices to discuss specific legal questions and precedents, why do we need law schools?

In a few weeks, thousands of first-years will raise their hands for the first time in Civil Procedure class and begin compromising their futures as blank-slate Supreme Court justices. Pity the 1-L who shows up unprepared for class and tries to convince the professor that answering any questions would raise an "appearance of impropriety." . . .

What an odd and, in my view, inapt comparison. (Yes, I realize that it's supposed to be funny or witty, but I take it that it's also intended to make a serious point.)

1. To begin with, if you really want to play out the analogy, it seems to me that any law students would be entirely within his rights not to express his views about certain subjects. The student must be able to make arguments about those subjects, and understand others' arguments. But if I ask a student what he thinks about Roe v. Wade, a student tells me "I'd rather not express my views about abortion, but here are the arguments for the decision and here are the arguments against it," I would gladly accept such an answer. In fact, I think it would be unethical for me to insist that a student reveal his own views in such a context, since such a revelation would be quite burdensome on his privacy, and would give very little pedagogical benefit. (It's sometimes useful to know a student's views, for instance when I deliberately try to get students to argue against their own views, but this utility is in my view outweighed by the student's privacy.)

2. Of course, Senators understandably care about nominees' personal views on legal questions, though professors generally don't and shouldn't care about their students' views on legal questions. But that just highlights the inaptness of the analogy between questions asked of nominees and questions asked of students. Students are asked questions to gauge their knowledge; nominees are asked questions to predict how they will vote.

3. And of course an "appearance of impropriety" response from a student is silly for the simple reason that the student's answer won't create an appearance of impropriety. Probably 99% of students won't become judges, and we generally make rules with an eye towards the 99% rather than the 1%. Even as to the remaining 1%, few people will think that an answer given in law school will lead the judge to feel bound by the answer — and thus unable to reconsider the issue based on the parties' arguments — thirty years later.

On the other hand, as I argued in more detail here — and as lots of people have said, and Mr. Reed must surely have heard — there is at least a plausible argument that a nominee's expressions of his views at confirmation hearings may indeed improperly constrain him in the future:

[I]magine a justice testifies under oath before the Senate about his views on (say) abortion, and later reaches a contrary decision. “Perjury!” partisans on the relevant side will likely cry: They’ll assume the statement made with an eye towards confirmation was a lie, rather than that the justice has genuinely changed his mind. Even if no calls for impeachment follow, the rancor and contempt towards the justice would be much greater than if he had simply disappointed his backers’ expectations.

Faced with that danger, a justice may well feel pressured into deciding the way that he testified, and rejecting attempts at persuasion. Yet that would be a violation of the judge’s duty to sincerely consider the parties’ arguments.

Now one can surely argue that, despite this risk, the nominee should be required to express his views, because the representatives of the people are entitled to consider those views when deciding whether to give him a position of great power. But Mr. Reed's misplaced law school analogy, it seems to me, does nothing to advance this argument.