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Sep 15 / Jonathan

Feingold v. Roberts

Josh Eidelson, writing at TPM Cafe, calls our attention to Russ Feingold demolishing the argument that candidate Supremes can’t discuss cases.

FEINGOLD: In Hamdi there were four different opinions…We know where all eight other members of the court stand on these opinions — in their opinions. They either wrote or joined one of them. Yet all eight of them will hear the next case that raises similar issues. No one is suggesting that their independence or impartiality in the next case has been compromised. Mr. Hamdi, of course, has left the country, so the precise facts of his case will never return to the court…Justice Scalia can participate in the next case involving the questions at issue in Hamdi, even though we know exactly what he thinks about that decision..Why shouldn’t the public have some idea of where you stand today on these crucial questions concerning the power of the government to jail them without charge or access to counsel in a time of war? They know a great deal about how each of the other justices approach these issues. Why is your situation different?

ROBERTS: Well, because each of the other eight justices came to their views in those cases through the judicial process…You’re now asking me for my opinion outside of that process: not after hearing the arguments; not after reading the briefs, not after participating with the other judges as part of the collegial process; not after sitting in the conference room and discussing with them their views, being open to their considered views of the case; not after going through the process of writing an opinion which I have found from personal experience and from observation often leads to a change in views…

FEINGOLD: What would be the harm, Judge, if we got your views at this point and then that process caused you to come to a different conclusion, as it appropriately should? What would be the harm?

ROBERTS: Well, the harm would be affecting the appearance of impartiality in the administration of justice…

FEINGOLD: I understand your view. I think it’s narrow. I have the experience of having one of my bills go for the Supreme Court and I know I didn’t have, as we say in Wisconsin, a snowball’s chance with a couple of the justices because of what they had ruled previously. But I didn’t think that made the process in any way tainted.

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