Justice Steven Leben (Kansas Court of Appeals) and Judge Kevin Burke (Minnesota trial Court) have a fascinating article in the MinnPost about how the lessons of procedural fairness can help guide how the Supreme Court judges conduct oral arguments on the affordable care act, and on how we and the public can assess their conduct. The article should help us cement our own understanding of appropriate judicial conduct. Some gems from the article:
“Voice is simple to understand: Will the justices be patient and convey that they are interested in what the lawyers have to say? On this score, Justice Clarence Thomas, who has his own set of critics, arguably is exemplary. He never asks questions and sits attentively. On the other hand, silence is not typically considered golden at an oral argument; questioning is the natural and expected way a judge explores a party’s position.”
I am no fan of judicial silence, partly because it may in fact mask pre-judgement.
Former Rep. Morris Udall asked for “the wisdom to utter words that are gentle and tender, for tomorrow we may have to eat them.” Wise judges know this too; we are not always right, and sometimes in the course of a career on the bench we must admit this. Practiced respect for the views of others, combined with the humility that comes with the knowledge that we sometimes may be wrong, fits well with the public’s expectation of a respectful judge.
Admitting the possibility of error should only increase respect. Provided of course it does not convey a lack of confidence.
But even with ample time, the attitudes demonstrated by the justices will frame perceptions of their fairness. Sen. John McCain attended the oral argument on the McCain-Feingold campaign-finance bill that he had sponsored. When the Court ultimately ruled in Citizens United v. FEC (2010) that the government could not ban political spending by corporations in candidate elections, Sen. McCain spoke in an interview about the attitudes he had observed during oral argument:
“I was not surprised at the Supreme Court decision. I went over there to observe the oral arguments. It was clear that Justice Roberts, Alito, and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [the law.].” (CBS, Face the Nation, Jan. 24, 2010.)
Sen. McCain has certainly been around the block and heard harsh attacks. Yet he remembered several months after oral argument that there had been “very skeptical and even sarcastic comments” made by several justices.
Hostile — or pre-judged — questioning is the antithesis of neutrality. Learning how to reassure that questioning is neutral, even when pursuing a particular path, is an important skill for the engaged and neutral judge.
I refer to some of my articles on engaged judging.