April 28, 2011
Footnote of the Day: Statements of Judicial Nominees or Candidates
In footnote 4 of her dissenting opinion in the 5-4 decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), declaring unconstitutional an ethical prohibition on judicial candidates announcing their opinions, Justice Ginsburg wrote:
The author of the Court’s opinion [in the present case of Republican Party of Minnesota v. White] declined on precisely these grounds to tell the Senate whether he would overrule a particular case:
‘‘Let us assume that I have people arguing before me to do it or not to do it. I think it is quite a thing to be arguing to somebody who you know has made a representation in the course of his confirmation hearings, and that is, by way of condition to his being confirmed, that he will do this or do that. I think I would be in a very bad position to adjudicate the case without being accused of having a less than impartial view of the matter.’’
13 R. Mersky & J. Jacobstein, The Supreme Court of the United States: Hearings and Reports on Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee, 1916–1986, p. 131 (1989) (hearings before the Senate Judiciary Committee on the nomination of then-Judge Scalia).
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