What’s so hard about televising oral arguments?

The question whether the cameras should be allowed in the Supreme Court is heating up. Most recently, CSPAN asked the justices to allow it to televise the oral argument over the health care law. It is unlikely that the justices will grant the request. In a recent sidebar, Adam Liptak argues that these refusals are based on “paternalism and self-interest.” Tony Mauro similarly argues that the Court's refusal to allow cameras in its courtroom "is born of fear of change, nostalgia, a self-interested desire for anonymity, but most of all exceptionalism: the Court's view of itself as a unique institution that can and should resist the demands of the information age."

Nancy Marder disagrees and argues instead that the justices have struck the right balance between the openness that the justices have chosen for themselves and their work and the obscurity in which their work must take place.

Liptak and Mauro take this one, and it’s not even close.

The Republicans turn to their favorite punching bag once again: the courts

It appears, if the editorial page of the New York Times is to be believed, that Newt Gingrich is at it again. I figured as much. His apparent conversion to moderate politics – I have in mind here his recent position on illegal immigration – was too good to be true. In his defense, running for the Republican nomination is not easy. Lots of crazies out there. Ask Romney. 

Here is the latest. According to Gingrich, Congress and the President must begin to push back on the Court, Cooper v. Aaron and judicial supremacy be damned. Among the tools at the politico’s disposal are the power to strip jurisdiction; impeachment; and the right to abolish specific judicial seats. The affected institutions could also ignore rulings they don’t like. 

The Times’ editors find this approach distasteful. As a general matter, they argue that Gingrich’s attack on the courts takes “the normal attack on the justice system to a new low.” They equate his criticism to “McCarthyist tactics” designed to “smear judges.” Gingrich’s view that the political branches must stand up to the court is described as “twisted.” They close with the following: “His ideas would replace the rule of law with a reign of ideology. If he had his way, a Supreme Court that ordered an end to racist segregation policies would become a puppet of the political branches.” 

I have three reactions, and a better response to Mr. Gingrich. 

The Politization of the Federal Judiciary

I often wonder what constitutional law professors tell their students about the big cases.  These are the canonical cases every law student discusses at one time or another during her law school years, cases such as Youngstown Steel and Brown v. Board of Education, Marbury v. Madison and Dred Scott, South Carolina v. Katzenbach and McCulloch v. Maryland. I suspect that most professors keep it simple.  They talk about the Constitution and surely they talk about "law" as an abstract proposition.  They also bring up prior cases and spend much time "distinguising" them or "reconciling" them, or else arguing why the present case follows seamlessly from prior, settled law.

I understand why they do this.  They are law school professors, and this is a place where law must matter.  if not law, then what?

But here is the problem.  Constitutional law is not about "law" in the formal sense.  That is, constitutional law is not about the formal meaning of the privileges and immunities clause or the necessary and proper clause.  To be sure, this is what law professors would have you believe.  I am here to tell you that they are either lying to you (and themselves) or else they are so imbued in the law school orthodoxy that they can't tell any better.  And that's too bad.

Justice for Judges?

Judicial salaries in New York state have not increased for over 10 years. Judges have complained about it, legal scholars have argued against it on grounds of legal justice and the need to safeguard judicial independence, and critics in general have denounced the tactic of tying judicial salaries to lawmakers' salaries as a political ploy. Or so tells us the New York Times in an editorial published today. The editorial concludes that "[r]efusing to grant any increase would be grossly unfair to judges, undermine the quality of the court system, and ignore the ruling by the Court of Appeals."

There is so much wrong in that one statement that I do not even know where to begin.

The unfairness point and the view that quality is undermined by low pay are just silly. Many things in life are unfair. But to argue that a salary of over $130,000 is unfair is hard to do, irrespective of what the judges do. If they don't like it, they can always get a new job. This, of course, is the segue to the quality argument. If judges are not paid enough, the best judges will choose to leave the judiciary for better paying positions elsewhere. This assumes many things about judges, including a method of judicial selection that ensures that only the best qualified candidates will assume office. New York state chooses its judges through elections, however, so the quality argument rings hollow.

Further, the quality argument takes a formalistic view of judging that does not comport with real life. Think of it this way. There are many people who would be willing to assume judicial office in New York state. The state chooses among them through elections. To be sure, many of these candidates are undoubtedly qualified, and hopefully the winning candidate is one of the qualified choices. But we have no way of ensuring that. This is one of the classic critiques of judicial elections. Note, however, how we readily equate quality with achievement, as if judging should only be reserved for the most qualified. This is simply not true, not even at the federal level. We know that. We also know that judges are not automatons, and that only the best judges will get the right answers to the legal questions presented to them. This is also a fanciful view of the judicial function. Judges are policy-makers,and elected ones at that; they just happen to have different constraints from legislators and executives. That does not make them any less political, or driven by ideological considerations.

The argument that low pay will affect the quality of the judiciary is simply not borne out by reality.

The third argument offered by the Times' editorial is curious at best. The state's highest court ruled last week that linking judicial pay to legislative pay violates the separation of powers' clause of the State Constitution. This is a lawsuit, mind you, began by judges wishing to see their pay increase.

You cannot make this stuff up. I think we have a name for this in law: conflict of interest?

Without question, these are difficult times. People are struggling to find jobs, or to hold on to the ones they have. Law school graduates are no exception. In this environment, pleading for higher pay is a hard sell. To invoke the state constitution, or argument of judicial quality or threats to judicial independence, should be taken for what they are.

Self-serving.