In Canada (and, I think, UK, Australasia -- tho' I am not up to date
with any of those 3), judges are appointed by a mysterious process that
involves no public hearings. Essentially the announcement is made by the
PM. In fact, I have always been told that the process is pretty thorough
-- mixture of the profession and the govt of the day doing the ID'ing
and checks etc etc. The problem of course is that it is not transparent
by any sense of the imagination. There are proposals for it to change
here altho' there is not the will to go to the full process of the US --
I think your Bork and Thomas hearings were salutory lessons, whether
fair or otherwise.
The interesting research question (certainly a neat comparative paper
for students) is what produces the better results? My gut instinct is
that, as long as you have appropriate controls to ensure highly
political selections are not made, judges have a long and proud history
of not doing what anyone expects them to do. The interesting thing to
add to the mix is retirement age and thus, length of tenure. Again gut
instinct -- mandatory turnover seems to me healthy even if you do, in
the process, get rid of the odd really good person. I remember when one
of the very fine High Court judges in Australia had increasing dementia
and the system had to try to deal with it -- tragic particularly given
his career to that point.
Sally
Richard Hurley wrote:
>Isn't Biden the person that cheated on some of academic work while a student at Syracuse?
>
>________________________________
>
>From: Academy of Legal Studies in Business (ALSB) Talk on behalf of Kenneth Schneyer
>Sent: Thu 9/15/2005 4:40 PM
>To: [log in to unmask]
>Subject: Re: John Roberts' Refusals to Discuss.
>
>
>
>Hi Keith,
>
>Biden's argument was creative, but ultimately a non-starter. (Indeed Biden knows perfectly well that no candidate for Supreme Court since the unfortunate Robert Bork has ventured to telegraph his or her decisions on possible cases; he knew Roberts would never respond; so he' s making a show for the folks in Delware by thundering, "Don't you think the people have a right to know?" when of course he knows they don't.) I thought Roberts's response to Biden was right on the mark: Opinions expressed in judicial decisions are the direct result of full arguments made by both sides, of a complete trial record, of deliberations in chambers, of discussions with clerks, and of negotiations over the final drafts of opinions. Further (this is my addition, not Roberts's) there's no way to write a judicial decision without expressing an opinion about something; it does not therefore follow that one must publicly declare one's opinion about everything.
>
>I also want to note that Roberts is insisting on talking about these matters as decisions on individual cases, largely crafted to the facts of those cases, rather than as positions on broad policy issues, which he consistently says is the province of the legislature.
>
>I would say, further, that Roberts has not been refusing to talk about legal issues. Indeed, he has been quite detailed in his analysis of some questions of constitutional and statutory law. But when genuinely controversial issues have been brought up, on topics that are known to be a continual topic of federal litigation, he has (quite correctly) not telegraphed what his opinion would be in advance.
>
>In general I have been impressed by Roberts's refusal to be rattled by politicians, on both sides of the aisle, who want to make political hay on a confirmation they know is in the bag.
>
>Ken Schneyer
>
>________________________________
>
>From: Academy of Legal Studies in Business (ALSB) Talk on behalf of maxwell
>Sent: Thu 9/15/2005 4:14 PM
>To: [log in to unmask]
>Subject: John Roberts' Refusals to Discuss.
>
>
>
>Greetings,
>
>After 3 days of hearings I am curious about ALSBers' assessment of the soon to
>be Chief Justice Roberts. As are most people, I am extremely impressed with
>the man's intellect and advocacy skills. My uneasiness comes, however, from a
>feeling that he is being disingenuous when he refuses to disuss certain
>general ISSUES (as distinguished from specific CASES now in the courts) based
>on the "possibility" of the issue coming before the court in the future. One
>of the Democrats on the committee (Biden?) challenged Roberts on this by
>pointing out that every time a justice writes an opinion he or she is
>revealing their view on an issue but they obviously do not recuse themselves
>fom hearing future cases that might involve the same issue. For example,
>Scalia's view that gay rights do not exist as a constitutional matter is
>obvious from his dissent in Lawrence, but no one would suggest that he has now
>disqualified himself from participating in a future gay rights case before the
>court.
>
>So, I guess my question is whether Roberts' refusals are based on valid
>grounds. Any thoughts?
>
>Keith
>
>
>
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