Sunday, February 5, 2017

Court of Appeals Nominee Rowan Wilson: Open Questions

The confirmation hearing for Governor Andrew Cuomo's latest pick for the Court of Appeals, the state's highest court, is scheduled for tomorrow, Monday, February 6, 2017. The Committee's Chair, Senator John J. Bonacic, has been conscientious, fair, well-prepared, and non-partisan in presiding over the hearings for Cuomo's previous 6 nominations.
[A far cry from the circus of partisanship and inanities that have characterized the confirmation hearings at the U.S. Senate for Supreme Court nominees.]

Nevertheless, given the mere one hour set aside for the Wilson hearing, it would seem extremely difficult for the Committee to get any real insight into the kind of Judge that Rowan Wilson might be. At the very least--the very very least--it would be good to know what his views are about the judicial role, especially that of a judge on a state's high court and, specifically, on the New York Court of Appeals. Indeed, to know how much thought he has given to that.

There are different views on those matters. In fact, conflicting views. And those different, conflicting views result in very different, conflicting modes of decision-making and, in turn, different, conflicting decisions.

Beyond that, some of the views often espoused about the judicial role, and often declared by judicial nominees, be kind...pure nonsense. Most notably, for example, that judges don't or shouldn't make law. Whether we call it law or rule or policy or precedent or some other name, the unquestionable, irrefutable truth is that judges, especially on high courts such as the U.S. Supreme Court and the NY Court of Appeals, make law.

They necessarily do so because the very cases they decide present unresolved issues of law, conflicting laws, competing "interpretations" of the law, legitimate legal arguments on both sides, etc. The judges must choose between the possibilities and, in doing so, they set precedent--i.e., a law (or rule or policy or whatever the palatable name)--that henceforth governs all the cases that follow and the actions of the other branches.

The great judges in our history all recognized and acknowledged that judges necessarily make law. Cardozo didn't even think it a question! As he once put it: "I am not concerned to inquire whether judges ought to be allowed to brew such a compound at all. I take judge-made law as one of the existing realities of life." Holmes, Frankfurter, and other greats of American law were also explicit on that point.
[Contrast that with--I'm trying to be kind--the pure nonsense we recently heard from President Trump's nominee to the Supreme Court: "It is the role of judges to apply, not alter, the work of the people’s representatives."
There would, of course, be no landmarks in American law if the great justices of the past adhered to that view. Every single landmark that Americans cherish did exactly the opposite of what Trump's nominee espoused.]

But to focus specifically on the nominee for New York's high court, we must do so realizing that there seems little in Rowan Wilson's public background that provides a good sense of his views about the judicial role or, even more specifically, of his view of the role of the Court of Appeals. At least 2 basic questions come to mind. The first is about judicial philosophy or, at its most elemental, how should a judge make decisions? The second is about the Court of Appeals. In particular, how should a judge on New York's high court decide cases in light of the Court's position in our federal system of government, and as the final arbiter of the state's law?

Rowan Wilson has no previous judicial experience. That is not in itself any problem. (See The No Judicial Experience Bugaboo.) But it does mean that he has no judicial track record. In fact, he has no record as a government official. So, unless he reveals as much at the confirmation hearing--volunteering it or responding to inquiries--we will not know much about Rowan Wilson that is really essential to knowing what kind of a Judge he may be.

Does Rowan Wilson believe in "originalism?"
Does he believe that constitutional provisions and statutes should be limited to their specific meaning at the time of their enactment--and only that?
So, "equal protection" was originally intended to protect the newly freed Black slaves. It was NOT intended to protect women, let alone gays or non-marital children or anyone else, and it should be applied in accordance with that original intention. [Yes, that is what originalists like Justice Scalia believed.]
Moreover, as for Blacks, it was NOT intended to prohibit racial segregation. Separate but equal was fine.
Also, free speech would not include "sedition" [as in the Alien and Sedition Laws] or blasphemy or casual vulgarity.
And as for "cruel and unusual" punishments, the 8th Amendment was only intended to forbid burning at the stake, dismemberment, and the like. But gratuitously painful punishments were not themselves prohibited.
Or does he believe in a "living Constitution" and laws?
Does he believe that specific original intentions should give way to more contemporary views about the same concepts?
Hence, "equal protection" should be extended to prohibit discrimination based on gender and birth and sexual orientation, etc?
"Equal protection" should also be construed to prohibit racial segregation?
And "cruel and unusual" should be construed to prohibit all punishments considered barbaric in today's civilized society--not just crucifixion, etc?

Does Rowan Wilson believe in "textualism" or "strict construction?"
Does he believe that constitutional provisions and statutes mean only what is explicit?
So, there is no right to privacy, or right to choose, or right to know your rights before being interrogated, or right to have a lawyer if you can't afford one when you're being prosecuted? None of those are explicit.
Likewise, there is no right to get married or be intimate with your spouse or even kiss your spouse, or right to be a parent, or right to raise your children or even play with them, or right to have a friend, or right to join a group with friends, etc., etc., etc. Not explicit.
And, because the 14th Amendment (which is the provision that guarantees "due process" against state violation) does not mention free speech, or religious freedom, or search and seizure, or right to counsel, or any other right in the Bill of Rights, does that mean that those rights should not be protected against state governments?
So too, because the Constitution protects free "speech," does that mean that only actual speaking is protected, but not any other forms of peaceful expression?
Or does he believe that it is the underlying principles that should be protected?
Does he believe that the overarching principles and purposes of constitutional and statutory provisions should be given effect?
Hence, fundamental rights--those that are implicit in the concept of "ordered liberty" [to use Cardozo's eternal phrase] and the essential ingredients of being free--are protected by the Constitution's guarantee of "liberty," whether or not such rights are specifically mentioned.
That, of course, would also include the most intimate and private choices in one's personal and familial life, which are nowhere mentioned in the Constitution.
Similarly, rights such as free speech are to be construed to include more than just talking, the right to counsel more than being able to have a lawyer but only if you can afford one, a fair trial to include (the unmentioned) proof beyond a reasonable doubt, and "cruel and unusual" to also include punishments that are grossly excessive.

Does Rowan Wilson believe that the judiciary should defer to the other branches?
Does he believe that the courts should approve whatever the executive and legislative branches do, except when clearly unconstitutional?
So if there is a legitimate question about the validity of legislation or of executive action, the courts should approve what the other branches have done; they should not interfere unless the other branches did something that is unquestionably invalid.
Accordingly, judicial interpretation and application of the law should mirror what the other branches have done, unless their actions are entirely irreconcilable with constitutional and other legal requirements.
Or does he believe that the judiciary should give constitutional rights and other commands their fullest possible effect?
Does he believe that the judiciary's interpretation and application of constitutional rights should be independent of what the other branches believe or have done? Independent of what the other branches prefer or what is popular?
So that constitutional rights and commands are vigorously enforced.
So that intrusions on constitutional rights and commands are only tolerated when justified by the most compelling government and societal needs.

These are among the most important questions for a nominee to a high court. At the very least, they are questions that a judicial nominee ought to have thought about. And they are questions that go to the very heart of a judge's role--answers to which those who confirm a nominee ought to be satisfied.

Then there is the nominee's view and understanding of the role of a state's high court and, specifically, of the Court of Appeals itself. Additionally, the nominee's knowledge of the historic landmarks of the Court, and of the body of case law that constitutes the Court of Appeals' jurisprudence. Briefly, for example:

How familiar is Rowan Wilson with the Court's landmark decisions and the jurisprudence that they underscore?
Is he familiar with the Court's precedents in areas as fundamental as free speech and press, right to counsel and search and seizure, due process and personal privacy, and so many others?
That these precedents are separate, independent, and different from those of the Supreme Court?
That these precedents form the foundation of much of Court of Appeals--and therefore New York--jurisprudence?
That these landmarks are a large part of the reason that the Court of Appeals has historically been one of the nation's finest and most influential courts?

How familiar is Rowan Wilson with the Court's tradition of independent state decision-making? What are his views about it?
Is he familiar with the Court of Appeals' tradition of protecting constitutional rights and liberties independent of U.S. Supreme Court decisions?
That the Court's historic protection of constitutional rights and liberties, separate from and beyond Supreme Court precedents, has proceeded under the Court's view of its responsibility to independently construe the state's law?
That when confronted with arguments based on Supreme Court precedents, many of the Court's greatest Judges were explicit in stressing the Court of Appeals' duty of independent adjudication.
As Chief Judge Lehman put it over 70 years ago, when the Court disregarded Supreme Court precedent to the contrary:
Parenthetically we may point out that in determining the scope and effect of the guarantees of fundamental rights of the individual in the Constitution of the State of New York, this court is bound to exercise its independent judgment and is not bound by a decision of the Supreme Court of the United States limiting the scope of similar guarantees in the Constitution of the United States. (People v. Barber, 1943)
Lehman's successors--including Chief Judges Fuld, Breitel, Cooke, Kaye, and Lippman--all echoed the same.
Is Rowan Wilson familiar with that traditional concept of the Court of Appeals' independent duty?
Is he aware that this "judicial federalism" is recognized and practiced by most of the nation's finest state high courts and, in fact, repeatedly affirmed by the Supreme Court itself as a basic attribute of our federal system of government?
Is he aware that the Court of Appeals has historically been a national leader in independent decision-making?

All of these foregoing matters are crucial to the work of a judge on a high court--whether the supreme court of a state or of the United States. And more specifically, they are crucial to the work of a Judge on New York's Court of Appeals.

I wish we had Rowan Wilson's answers to these questions and had some sense of his views on the judicial role, on judicial decision-making, and on the role of the Court of Appeals. I do wish him well and, if I had to guess, I think he will do very well on the high court.
Based on his education, experience and achievements, he certainly seems to be more than capable of being a very fine Judge. But without some answers to the questions I've raised, it's really anybody's guess what kind of Judge he'll be.