Column on ‘political’ Supreme Court argues against judges’ conduct code

In his November 18 guest column, "By its very design, the US Supreme court is 'political'," Kris Whitten basically argues that the U.S. Supreme Court was designed to be populated by justices who lack the character and integrity to even attempt to keep their biases in check and decide cases in an impartial manner.

As explained in the American Bar Association's February 22 program, "Is There a Case for Structural Reform of the U.S. Supreme Court?," starting with the nomination of John Marshall Harlan II to the U.S. Supreme Court by President Dwight Eisenhower in 1955, Senate confirmation hearings started focusing on desired outcomes of hot issue cases over qualifications in response to the Supreme Court's decision in Brown v. Board of Education.

The panelists on that program consisted of the following individuals on both sides of the political isle: Sherilynn Ifill, president and director-counsel for the NAACP Legal Defense and Educational Fund, Miguel Estrada, partner in the Washington, D.C., office of Gibson, Dunn & Crutcher LLP, Neal Katyal, law professor at Georgetown University Law Center, and Stephen Carter, professor of law at Yale Law School. The panelists were in complete agreement that presidents should nominate to the judicial bench and the Senate should confirm nominations based upon qualifications (including standing, legal experience, temperament and diversity of background and thought) over desired outcomes of particular cases.

Basically, the panelists were saying that character and integrity matter when it comes to judges and justices. When nominating and confirming judges and justices, presidents and senators are not just trying to assess the biases held by those individuals, but whether they believe the individuals lack the character and integrity to try and keep their biases in check.

There is a difference between neutrality and impartiality. All human beings have infinite numbers of biases, which makes neutrality little more than a pipe dream. However, it has been scientifically proven that people have the ability to keep their biases in check, which means that they can act in an impartial manner. This was the entire point set forth in my September 21 column in the Daily Journal, "Is focusing on perceived and actual biases misplaced?"

Canon 3 of the Code of Conduct for United States Judges is as follows: "A Judge Should Perform the Duties of the Office, Fairly, Impartially and Diligently." Whitten is arguing quite the opposite. 

-- Mark Baer

Pasadena