Legal Commentary

The "Appearance" of Judicial Impartiality

By Big Tent Democrat

One of the silliest arguments that you will hear to defend the view that judicial nominees should not answer questions about their legal views is the supposed need to maintain "the appearance of impartiality." By that logic, the Supreme Court itself could not decide cases that touch upon decisions they participated in. Let me provide a few examples. The late Chief Justice William Rehnquist dissented in Roe v. Wade in 1973. After Roe, a series of cases touching on the right to choose came before the Court. And in 1993, the Court decided Planned Parenthood v. Casey. To the surprise of no one, Rehnquist maintained his view that Roe was wrongly decided:

In Roe v. Wade, the Court recognized a "guarantee of personal privacy" which "is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." 410 U.S. at 410 U.S. 152"]152-153. We are now of the view that, in terming this right fundamental, the Court in Roe read the earlier opinions upon which it based its decision much too broadly.

Was the "appearance" of judicial impartiality damaged because Rehnquist had publically stated his views on the right to choose in his dissent in Roe? And if it wasn't, how in blazes would requiring a judicial nominee to say whether they agree with Roe or Casey damage the "appearance"of impartiality?

This argument for not requiring answers from judicial nominees is empty, vacuous and idiotic.

Speaking for me only

Full post as published by TalkLeft on May 16, 2010 (boomark / email).