Bench Memos

NRO’s home for judicial news and analysis.

Don’t Answer That Question


Matthew believes that a candidate’s views on gay marriage are permissible, which he supports with the following question:

“Why does it become a question that we must skirt today, precisely because more people have lost their minds and believe the answer may be ‘yes’?”

As luck would have it, there is a very simple answer: because there are now lawsuits which very well may end up in the Supreme Court, and the code of conduct for U.S. judges admonishes judges to “avoid public comment on the merits of a pending or impending action.” In other words, it doesn’t matter that the Supreme Court has not granted review in the case; if it is in the appellate pipeline (that is, if it is impending), then judges should avoid comment. Contrary to Matthew’s allusion, there is no frivolousness exception. Is it pending or impending? Then you don’t talk about it, even if it was at one time, or might be considered by some today to be non-meritorious.

It seems that a number of conservatives, including several on this page, would like to put the hot pokers to Judge Roberts and force him to answer well-crafted questions designed to elicit how he would likely rule in future cases. But even asking “gross” questions may be problematic if combined with pressing questions about the candidates view of stare decisis. Thus, if a candidate says that he believes that Roe or Lawrence were wrongly decided, and then is pressed to say that he believes that stare decisis carries little weight in questions of constitutional adjudication, then the candidate has functionally been asked about how he would rule in a panoply of subsidiary cases that are pending or impending before the court. Because ethical codes are interpreted to avoid the appearance of impropriety or partiality, they can’t legitimately be circumvented by such simplistic inquisitorial legerdemain. Based on the code of conduct for judges, the law of recusal, and applying a modicum of prudence concerning public perception of judicial objectivity, these are precisely the kind of questions that Roberts should not answer.


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