Howard J. Bashman's appellate columns, etc.

Wisconsin's Voters Show That They Prefer The "Stealth" Candidate For Judicial Office

By Howard J. Bashman
Monday, May 12, 2003
Democratic Senators blocking an up or down vote on the confirmation of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit repeatedly invoke the mantra that it is unacceptable to allow the confirmation of that "stealth" nominee. But does a "stealth" nominee for judicial office necessarily equal an unacceptable candidate? The voters of Wisconsin seem not to have thought so.

The accusation that Estrada is a "stealth" nominee strikes me as absurd for any number of reasons. Foremost on my list is the fact that the Senate knows as much or more about Estrada's views as it knew about the views of most of the other federal appellate court nominees who have been confirmed during George W. Bush's presidency. And to the extent that Senators serving on the Judiciary Committee can legitimately claim that the nominee hasn't answered questions, it tends to be because the questions themselves are out of bounds.

I won't go so far as Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT), who last week accused one of his Democratic colleagues on the committee of asking "dumb-ass questions." But my observation is that when a controversial nominee is before the committee, Senators likely to vote against the nomination use much of the limited time allotted for questioning the nominee to read a speech denouncing the nomination. Then, in what little time remains, such Senators will ask a stem-winder of a question that ends up demanding to know the candidate's position on issues likely to come before the court for a ruling.

There are plenty of ways to ask questions to learn about a judicial candidate's philosophy of judging that don't require the candidate for an intermediate appellate court to answer the entirely irrelevant question of whether Roe v. Wade was properly decided or which U.S. Supreme Court decision the candidate despises the most. Of course, U.S. Supreme Court decisions that remain good law bind intermediate appellate court judges as precedent whether those judges agree or disagree with the outcome.

Some of the more outrageous procedural tactics underway in the U.S. Senate -- including the use of filibusters against multiple intermediate appellate court nominees, the refusal to bring nominees on for confirmation hearings on a timely basis, and the continuing blockade of all four nominees to the Sixth Circuit from Michigan as payback for how the Republicans treated President Bill Clinton's Sixth Circuit nominees from that State -- are enough to give one a newfound appreciation for alternative methods used to select judges serving on state courts.

No doubt the most controversial method for selecting state court judges remains the use of elections. On the plus side of the ledger, elections produce results: someone wins, and someone loses. On the negative side of the ledger, judicial elections tend to suffer from voter apathy. And there's the very real perception that money given to candidate for judicial office will produce improper favoritism toward donors after a judge wins election.

Some eleven months ago, my June 2002 column predicted (correctly, it just so happens) the outcome of a case then pending before the U.S. Supreme Court presenting a challenge to a regulation that prohibited candidates for elected judicial office from "announc[ing] his or her views on disputed legal or political issues." The Court, by a 5-4 margin, ruled that the regulation violated the First Amendment. As a result, candidates for judicial office are now free from that regulation's strictures.

In early April 2003, the State of Wisconsin held a general election to fill a vacancy on the Supreme Court of Wisconsin. Two sitting lower court judges ran for the office. One freely announced his views on abortion rights and school choice programs. The other refused to disclose her personal views, contending that it would improperly allow litigants to call into question her impartiality if she won the election. As a result, the first candidate condemned his reticent opponent as a "stealth" candidate for judicial office.

Notwithstanding her stealthiness, Wisconsin's electorate ended up voting onto that State's highest court the candidate who had refused to disclose her views on the most controversial issues presented in the campaign. What if any lesson is to be learned?

Social scientists legitimately warn against drawing broad conclusions from just a single data point. But sometimes a single data point is all one needs to prove a hypothesis. For example, someone who suffers just one especially painful paper cut -- a significant career hazard for appellate lawyers -- feels no qualms drawing broad conclusions from the experience.

The lesson I draw from Wisconsin's recent judicial election is that being a "stealth" candidate for judicial office is not automatically disqualifying. It underscores the point that while the U.S. Supreme Court's recent ruling gives candidates for elected judicial office the right to speak about disputed legal or political issues, it doesn't require them to do so.

My prediction is that it will be easier for a candidate to stay silent if her adversary is advocating unpopular positions, but it will be much more difficult to remain silent if her adversary is telling the electorate precisely what it wants to hear. Staying silent in the latter circumstance might cause the tight-lipped candidate to be perceived as opposed to the popular positions that her adversary is advocating.

It is most ironic, though, that a stealth nominee for the Supreme Court of Wisconsin proved acceptable to the voters of that State, one of the Nation's most liberal, while in the U.S. Senate being portrayed as a "stealth" nominee causes the candidate for judicial office to be fair game for an endless filibuster, no matter how objectively wonderful his qualifications happen to be.

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Just over one week ago, Edward R. Becker's tenure as Chief Judge of the U.S. Court of Appeals for the Third Circuit came to an end. It is questionable whether enough superlatives exist to capture the extraordinary service that he provided to advance the goal of justice during his tenure as Chief Judge.

Chief Judge Becker understood that delivering justice means more than simply reaching the correct results in the cases under consideration. His successful initiatives to eradicate Judgment Orders that affirmed the decision on appeal without explanation and to provide easy online access to the Court's non-precedential decisions were especially praiseworthy. He also led the Court to resume oral arguments in Newark, New Jersey and Pittsburgh, something for which lawyers based near those locations remain deeply appreciative. And the Court's efforts under his stewardship to promote public education programs, and to renovate the lobby of the Philadelphia Courthouse to make it more welcoming and educational, have further advanced the cause and perception of justice.

Congress by statute has sought to provide that each of the Nation's federal appellate courts will always have a chief judge. But Becker did much more than simply assume a title. Through his tireless work, he ensured that the Third Circuit today is a much better place in which to be a litigant and to practice law than it was when he assumed the mantle of Chief. And for that he has earned not just my thanks, but also the thanks of countless of my colleagues at the Bar.

This article is reprinted with permission from the May 12, 2003 issue of The Legal Intelligencer © 2003 NLP IP Company.