THINKING ABOUT JUDICIAL BEHAVIOR
In 1989, Cincinnati Reds manager Pete Rose faced an investigation of his
alleged gambling activities by major league baseball. Rose's attorneys filed
suit to block the investigation, and they steered the case to a Cincinnati judge
who faced re-election in 1990. That judge, Norbert Nadel, allowed his an-
nouncement of a decision to be televised. When he “started the hearing with
a microphone check,” according to one writer, “you knew Pete Rose had the
home-court advantage” (Cleveland Plain Dealer 1989). Indeed, the ruling
gave Rose what he wanted. (Cincinnati Enquirer 1989)As George W. Bush ran for president in 2000, commentators speculated
about possible candidates for Bush appointments to the Supreme Court.
J. Harvie Wilkinson and J. Michael Luttig, two subjects of the speculation,
sat on the federal court of appeals for the Fourth Circuit in Virginia. In two
cases decided in June 2000, Luttig wrote opinions attacking relatively liberal
positions that Wilkinson was taking. In an environmental case Luttig linked
Wilkinson's position with that of two liberal Supreme Court justices. In a
freedom of speech case Luttig used Wilkinson's name more than fifty times,
with four of the mentions coming in a paragraph that described sexually
explicit material related to the case. (Urofsky v. Gilmore 2000; Gibbs v. Bab-
bitt 2000)On the day in 1992 that the Supreme Court announced its decision in
Planned Parenthood v. Casey, Justice Anthony Kennedy talked with a legal
reporter in his chambers before the announcement. Looking through his win-
dow at the crowd of demonstrators on both sides of the abortion issue, Ken-
nedy referred to the impending decision in which he coauthored the decisive
opinion. “Sometimes you don't know if you're Caesar about to cross the
Rubicon or Captain Queeg cutting your own tow line.” Shortly before taking
the bench, Kennedy asked to be alone. “I need to brood,” he explained. “I
generally brood, as all of us do on the bench, just before we go on. It's a
moment of quiet around here to search your soul and your conscience.”
(T. Carter 1992 39–40, 103)A few weeks earlier, Justice Harry Blackmun spoke for an hour at a luncheon
meeting of the Legal Aid Society in San Francisco. During his talk Blackmun
read some of the fan mail he received from the public. He also expressed his
disappointment about the Supreme Court's growing conservatism on civil
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