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.

Glenn Bridgman (mail):
Erm, there is a distinction between "views on abortion" and "views of Roe v Wade."
8.13.2005 7:47pm
John Jenkins (mail):
Not in the Senate, I'm afraid, nor to the vast swaths of people who believe that overruling Roe v. Wade would instantly mean abortions everywhere in the United States were illegal because that's the way the case is treated in the non-scholarly press.
8.13.2005 7:57pm
The Plumber (www):
I can only think of two ways to stop this type of questioning of Republican-nominated SC nominee's. Either the voters put in more Republicans, or the Republicans in the Senate need to grow some balls and stand up for themselves.

Comity with the Dems. seems to be a one-way street.
8.13.2005 10:03pm
Ulrich Bonnell Phillips:
Is it possible that Reed never went to law school?

His DLC bio: "a graduate of Princeton and Oxford, where he was a Rhodes Scholar."

Does not sound like a law school graduate to me, or my law school experience took the humor out of the joke for me.

His comment: "[I]f it's improper for future Court justices to discuss specific legal questions and precedents, why do we need law schools?" Even with the next paragraph that is stretch. We may or may not need law schools, but I do not see an argument on that issue being related to his comments.
8.14.2005 12:04am
Bruce Hayden (mail) (www):
Roe v. Wade is contentious (to point out the obvious). When I was in Law School almost 20 years ago, my Con Law prof (who, it turns out, is quite liberal) tried to get a discussion going on the case. Political correctness intimidated anyone from actually taking the anti side. So, the prof did what they are wont to do - randomly picked somone. But he made the mistake of picking a ferverant pro-choice feminist, who got outraged (and refused). About half the class signed a petition asking the faculty to discipline the prof for this, while about 1/3 signed a petition indicating that they had been intimidated by the pro-choicers. The faculty committee reasonably asked the class representative who was presenting the first petition for her remedy. Did they want the class regraded? It turns out no, esp. since she had the high grade in the class.

My view was that he was just trying to do his job, in trying times. To me, these students who couldn't even think of taking the opposite side were shorting themselves in the learning to be lawyers. And this is one reason that I think that Judge Roberts is more than likely do a good job on the High Court. He seems to be well capable of this.
8.14.2005 11:35am
Bruce Hayden (mail) (www):
I think that this has been beaten quite enough, but the reason that asking about one side of a case in a law school class would not raise the appearance of impropriety is that law students should be learning to separate their own views from those they are presenting as attorneys. So, I don't think that it would be wrong for a law school student to refuse to state his own views on abortion, whereas I think that he should have to answer if asked about the legal arguments in Roe v. Wade. To me, there is a big difference - that I suspect a lot of the laity does not understand.
8.14.2005 11:45am
Eugene Volokh (www):
Folks: I've deleted some posts that were off-topic (though thanks to David Berke and Bruce Hayden for the kind words) -- they just didn't seem to have much to do with this thread.
8.14.2005 11:52am
Splunge (mail):
A superb and cogent post by Mr. Volokh.

However, I think the grosser deceit of Mr. Reed's text lies in his misrepresentation of the memo in question. Mr. Reed says:

"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."

Mr. Reed helpfully links the Post story itself, the lead of which is this:

"Supreme Court nominee John G. Roberts Jr. once urged a previous nominee, Sandra Day O'Connor, not to tell members of Congress how she might vote in cases likely to come before the court."

(Emphasis mine.)

Ah...even a miserable non-lawyer such as I can see a world of difference between answering questions about "her views on legal questions" and saying "how she might vote" on cases likely to come before the Court.
8.14.2005 1:15pm
Steve J. (mail) (www):
Would it be OK to ask Roberts what he thought of the legal reasoning behind Griswold?
8.15.2005 10:36am
Cheburashka (mail):
I agree. "Has Been" is a terrible column. Possibly the dullest thing I've seen on Slate.
8.15.2005 2:53pm