Wednesday, October 05, 2005

A European Perspective on Author's Guild v. Google Print

BlogScript, an Edinburgh blog on "innovation, technology and the law" has a legal take on the lawsuit by Author's Guild against Google from a European perspective.

What is the Most Important Characteristic of a Judge or Justice ? - Impartiality

If I were ever to be in the situation where I would be judged, the most important thing to me would be the impartiality of the judge. That is the logical basis for the idea of "equal protection under the laws".

A Judge or Justice should be neutral toward the parties - and yet - the political bodies always want a judge to be partial to a given way of thinking, thus not understanding the nature of the judge's job at all. President Bush and Democrats and Republicans want to be confident that the selected Justice would decide cases the way THEY would want for the next 20 years. But Harriet Miers or any other Judge or Justice should decide cases the way that the LAW would want, indeed that the law requires, for - or against - the parties who are seeking a fair hearing in the courts. An impartial hearing.

Eugene Volokh at the Volokh Conspiracy asks the question "So What Is Really Important in a Justice, and How Do We Measure a Nominee Against Those Requirements?" ... and Volokh lists 13 atrtributes for his test - but impartiality is not among them, and is of course cloaked under the heading of "ethics", a broad term which can mean many things to many people. No, ethics is not the right word. Many a morally righteous judge has historically sent innocent "wrongly thinking" men to hang, and been virtuously - ethically - proud of it.

IMPARTIALITY is the essence of judging. NO FAVORITES.

Senator Orrin Hatch just recently wrote as follows in "John Roberts Isn’t Running for Congress: The Court is different".

"First, what judges do limits what judicial nominees may discuss. The oath of judicial office and the Canons of Judicial Ethics require impartiality and prohibit making commitments regarding issues that may come before a court. Senators want to know many things about judicial nominees, but that desire to know is not the only consideration on the table. The separate imperative of judicial impartiality and independence means that nominees may not be able to answer two popular kinds of questions.

Many questions seek commitments or clues about how a nominee would rule on particular issues. Senators, and the law professors they consult, know many ways of artfully crafting such questions, but we all know those questions are designed to elicit political opinions from jurists who are ethically bound to be impartial. In 1993, Judge Ruth Bader Ginsburg, President Clinton's Supreme Court nominee, explained why nominees cannot answer such questions, no matter how they are framed. She said: "A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process."

That is absolutely correct. We do not want a Justice whose main claim to fame is loyalty to the Democratic or Republican Party. We do not want a Justice whose main claim to fame is loyalty to President Bush. We want a Justice whose main claim to fame is loyalty to the LAW.

And that is where the problem with the Harriet Miers' nomination begins. What is her loyalty to the LAW? How is that loyalty to be judged from her professional politically-inclined record, and from her recent record of behavior while in charge of preparing materials about Supreme Court nominees for the President. Do we get a sense of impartiality from these things?

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