Posted on 03/04/2003 1:05:56 PM PST by tuckrdout
Just watching the Senate, when the Senior Senator from New York stood to participate in the filabuster of Judicial nominee, Miguel Estrada. Schumer produced a large blue board, which contained a quote. The quote was attributed to the "Legal Times, April 2002"; yet the quote was presented in a way which made it seem as if the White House had spoken the words. I would like to know if any of the brilliant political minds here would be able to tell me where the quote came from. Who actually said these words: "President George W. Bush's Judicial nominees received some very specific confirmation advice last week, "keep your mouths shut".
Did the White house administer that advice to the nominees as Schumer wanted everyone to believe? If not, who gave the advice?
This is from part 4, "Navigating the senate."
Keep two things in mind at this stage. First, limit your talking to private one-on-one meetings with the senators on your confirmation committee and their staffs. And even at your confirmation hearing, it’s best to let the senators themselves do most of the talking. Second, recognize from the start that there are limits on your candor. From now on, you are speaking not just for yourself but for the administration.Walter Broadnax, a former deputy secretary in the Department of Health and Human Services who is now dean of the School of Public Affairs at American University, puts it bluntly:
Staffers are going to craft answers and give them to you and, in some instances, if you want to get confirmed, you’ll memorize those answers and you will give them back to the appropriate committee. People tell you how to talk. … It’s not very flattering, but that’s the game you’re going to have to play for a while — even after confirmation sometimes.
LOL
Hearings are formal events. You will be sworn in, although the rules of evidence will not apply — senators can ask whatever they want. Be deferential at all times. Always refer to your interlocutors as "Senator." Don’t be surprised or disheartened if senators drift in and out on the way to other meetings, or if just one or two senators turn out to hear your opening statement and pose questions.Generally speaking, the less you talk, the better your prospects.
Judge Nominees Told to Speak Very SoftlyJonathan Groner
Legal Times
04-22-2002President George W. Bush's judicial nominees received some very specific confirmation advice last week: Keep your mouths shut.
The warning came from someone who has been a part of the process. Laurence Silberman, a senior judge on the U.S. Court of Appeals for the D.C. Circuit, told an audience of 150 at a Federalist Society luncheon that he served as an informal adviser to his then-D.C. Circuit colleague Antonin Scalia when Scalia was nominated to the Supreme Court in 1986.
"I was his counsel, and I counseled him to say nothing [at his confirmation hearings] concerning any matter that could be thought to bear on any cases coming before the Court," Silberman said.
Silberman said his advice led to Scalia's speedy confirmation by keeping the nominee out of trouble on Capitol Hill. He also explained that the advice was intended to be rather far-reaching.
Scalia called Silberman at one point, the latter recalled, and told him he was about to be questioned about his views about Marbury v. Madison, the nearly 200-year-old case that established the principle of judicial review.
"I told him that as a matter of principle, he shouldn't answer that question either," Silberman said. He explained that once a prospective judge discusses any case at all, the floodgates open and he would be forced to discuss other cases.
"It is unethical to answer such questions," Silberman said. "It can't help but have some effect on your decision-making process once you become a judge."
In contrast, Silberman said, "my friend Bob Bork" ventured into the legal thickets and suffered for it. Bork "thought he could turn the confirmation process into a Yale Law School classroom," Silberman explained.
The Supreme Court nomination of Robert Bork, also a D.C. Circuit judge, was defeated in 1987, partly because Bork expressed controversial views in his writings and on the stand.
Silberman went on to say that for many nominees, landing a judgeship might not be the best result. Referring to a recent Supreme Court decision not to review a case brought by judges seeking pay raises, Silberman said that anyone who is not already wealthy "faces an immediate decline in his or her real income" if seated on the federal bench.
"The first prize is not to get a hearing," he noted. "The second prize is to get a hearing and not to be confirmed. The third prize is to get confirmed."
Other panelists at the Federalist Society's discussion on judicial independence were Sen. Jon Kyl (R-Ariz.), former presidential counsel Fred Fielding of Wiley, Rein & Fielding, and moderator Stuart Taylor Jr. of National Journal .
My colleague from New York has stated that according to an article that appeared in the Legal Times in April 2002, DC Circuit Judge Laurence Silberman has advised President Bush's judicial nominees to ``keep their mouths shut.''As the rest of the article explains, in fact, Judge Silberman simply explained that the rules of judicial ethics prohibit nominees from indicating how they would rule in a given case or on a given issue--or even appearing to indicate how they would rule.
As the same article reported, Judge Silberman stated:
It is unethical to answer such questions. It can't help but have some effect on your decisionmaking process once you become a judge.A copy of this article has also been printed in the RECORD.Yet I heard my colleagues on the other side yesterday blowing smoke over there, using a quote out of context to try to indicate that Judge Silberman was giving them radical advice. The fact is, he gave them advice that every Democrat President and every Democrat President's Justice Department has given to the Democrat nominees for these courts. It is proper advice.
This advice is consistent with Canon 5A(3)(d) of the ABA's Model Code of Judicial Conduct, which states that prospective judges:
[S]hall not ..... make pledges or promises of conduct in office other than the faithful and impartial performance of the duties of office ..... [or] make statements that commit or appear to commit the candidate with respect to cases, controversies, or issues that are likely to come before the court.Justice Thurgood Marshall made the same point in 1967 when he refused, as I mentioned before, to answer questions about the fifth amendment during his confirmation hearing for the Supreme Court. I referenced that quote earlier.
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