I have not been a constitutional lawyer for nearly 30 years, and therefore do not regularly read Supreme Court opinions. Imagine my shock, however, upon reading a statement in today's New York Times saying that in 2002 the Supreme Court had ruled it unconstitutional to bar a candidate running for a judicial office from stating his views on a legal question. I looked up the case (Republican Party of Minnesota v. White) and, sure enough, that is exactly what the Supreme Court ruled. You cannot constitutionally bar a candidate from stating his views on legal issues that may come before the court to which he aspires. The opinion of the Court was written by Scalia, and joined by conservative justices like Rehnquist and Thomas (as well as by O'Connor and Kennedy). The liberals voted the other way and O'Connor and Kennedy also wrote concurring opinions.
I am floored. Just floored. Roberts and Alito — conservative nominees of a conservative President kept saying, as did all their conservative supporters, that they could not answer questions that might come before the Court, but the conservative justices of the Supreme Court have ruled that a nominee can state his position on questions that may come before the court he aspires to, and that ruling was in fact the judgment of the high Court, notwithstanding the liberals' opposition? Wow!! How were the Democrats and their many staff members and minions, including leading constitutional lawyers, so incompetent that they never mentioned this Supreme Court ruling when Roberts and Alito were claiming they were barred from answering questions that might come before the Supreme Court? And are we supposed to believe that Roberts and Alito — both regarded as major fonts of Supreme Court knowledge supposedly did not know of the 2002 case when they said they were barred from making comments? Who can believe that?
There are many ways, as even a quick reading of the case shows, to try to distinguish between the 2002 case and the Roberts and Alito matters. There is no time to discuss them here, and I have therefore appended the opinion for anyone who wants to read it. At the end of the day, however, regardless of attempted distinctions, the critical fact is that it is now constitutional law that a candidate is not barred, and cannot be barred, from saying what he thinks about a legal question that he may have to address as a judge.
I would also say it is either an obnoxious boast or a confession of intellectual bankruptcy, depending on how you look at it that a number of the arguments made by the majority in the 2002 case by Scalia and other reactionaries, no less are identical to ones made in this blog previously.
As said here before, the Alito nomination should be filibustered. This is only the more true because the Supreme Court via the conservatives, no less has rejected the “I cannot and will not talk” claim used by Roberts and Alito to avoid talking, and used for this purpose because Roberts and Alito, Bush, and Bush's henchmen all knew the two nominees would be overwhelmingly rejected if they did talk, if they did truthfully give their opinions about legal questions they instead refused to discuss.
January 26, 2006