A Close-Minded Judge is Out of Order
The Boston Herald
July 5, 1999
A Close-Minded Judge is Out of Order
By Mark Kozlowski
The race for the Republican presidential nomination is well under way and no one doubts that Texas Gov. George W. Bush is the man to beat. That being the case, the other GOP candidates know that if Governor Bush cannot be knocked off of his pedestal, they better start working on a concession speech and prepare for a farewell appearance on “Larry King Live.”
Not surprisingly, therefore, it is pledge season among the candidates, and I don’t mean anything to do with fraternity rush. (Bush has been there). No, the goal here is to test the governor’s conservative bona fides by demanding that he commit publicly with respect to certain issues supposedly dear to the hearts of the GOP rank and file. There are two old favorites: “the no-new-taxes pledge” and “the pro-life judges pledge.”
The first is straightforward: Bush is being goaded to declare that, as president, he would oppose any federal tax increase. He should have no trouble with this. After all, his dad took the same pledge during the 1988 race and he won. But the second pledge is a little murkier. It would bind Bush to the promise that he will nominate to the federal judiciary only those individuals who share the GOP’s anti-abortion platform position.
There is, however, some difference among his GOP rivals as to how ironclad the pledge should be. Hard-liner Gary Bauer says that he would only nominate those individuals “who will unhesitatingly vote to overturn Roe v. Wade” and that Bush should also so declare. Steve Forbes, displaying the noblesse oblige characteristic of his class, says he would nominate only individuals “who share his pro-life views” and that Bush should do the same.
But Bush has so far resisted taking the pro-life judges pledge, saying only that he will nominate judges who “will strictly interpret the Constitution.” This is a laudable stance because the pro-life judges pledge is one that no candidate should make.
Compare it to the no-new-taxes pledge. Taxes are determined by the legislative process. Pledging to oppose any tax increase may or may not be a good idea, but it is not improper for a candidate to bind himself to a particular position. But it is a far different thing for a presidential candidate to pledge that he will not consider his judicial nominees to be qualified unless they announce a pro-life orientation before taking the bench. No worthy prospective judge would ever think of making such a commitment.
Judges decide cases, and litigants are entitled to have “a neutral and detached judge” preside, as the U.S. Supreme Court stated more than a quarter-century ago. According the American Bar Association Code of Judicial Conduct, a judge “shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.” A judicial nominee who states his complete partiality as to cases involving abortion disregards this ethical rule utterly.
But we all know that there are judges who have compiled strong pro-choice or pro-life records in abortion cases. A pro-choice group knows that it doesn’t stand a big chance of getting Justice Antonin Scalia or Justice Clarence Thomas to side with it. During their respective nomination hearings, neither of these men pledged to only take pro-life positions. But they both had conservative records with lower courts and they stayed true to these records when they reached the Supreme Court.
True enough, but there is a big difference between facing a judge who can say, “In the past, I have not been supportive of the legal claims such as the one you bring in this case,” and a judge who can say, “I owe my job to having made a public declaration that legal claims like yours have no merit.” It is the difference between facing a judge whose mind is at least potentially subject to change, and a judge whose mind cannot be changed unless that judge reneges on a promise to which he owes his position. The mind of the latter judge is all but closed, and a judge with a closed mind is no judge at all.
Conservatives - even “compassionate” ones like George W. Bush - tell us all the time that in constitutional matters, they will strive to honor the intent of the Founding Fathers. Well, that intent is not in question on this matter. Writing in “The Federalist,” Alexander Hamilton, possibly the greatest lawyer of his time, wrote that “the independent spirit of judges” is essential to “the faithful performance of so arduous a duty.” I urge Gov. Bush to continue to reject all calls to take the pro-life judges pledge. Alexander Hamilton and his fellow Framers of the Constitution will be watching.
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ABOUT THE AUTHOR
Mark Kozlowski is a Staff Attorney at the Brennan Center for Justice at NYU School of Law.
