Judge DeMoss and the (Non?) Right to Privacy

Fifth Circuit Judge Harold DeMoss recently had an article of his published in the Houston Chronicle.  In this article he argues that the Constitution does not contain a right to privacy, and he calls for a national referendum to abrogate Roe v. Wade.

Is it appropriate for a sitting federal judge to write such articles, and call for such a national referendum?  In the last paragraph of the article, Judge DeMoss seems to suggest that he is writing the article in his individual capacity, noting that (emphasis added): "As a U.S. citizen, I respectfully petition the Congress to call a national referendum to permit the people to just say no or yes to the Supreme Court's usurpation of the power to amend the Constitution. I invite others who share my views to do likewise."  Yet the byline of the article read "By Judge Harold R. DeMoss Jr."

Given that Judge DeMoss is on the record as opposing the right to privacy, doesn't anyone litigating this issue in the Fifth Circuit have a reason to move for his recusal?  How can he claim to be impartial in right-to-privacy cases?  He would likely counter with the rejoinder that he would follow Supreme Court precedent.  But if there is no precedent on point, can't we be reasonably sure that, in light of his comments, he will absolutely side against the party seeking to extend the right to privacy?

Morever, in the next confirmation hearing, when a judge is asked whether there is a right to privacy, might Senate Democrats use this article to support their contention that a nominee should not refuse to answer questions with some specificity?  I can see Senator Kennedy saying: "Now, now, Mr. Kavanaugh, stop evading my questions.  Judge DeMoss felt free to state his views on this issue. In light of this, why do you refuse to state your views?"

Anyhow, I'd love to hear your thoughts on the judicial ethics issue.  My off-the-cuff response is that if I were crafting a right-to-privacy argument before a Fifth Circuit that contained Judge DeMoss, I'd consider the best possible outcome to be 2-1.

Comments

[Guest]

If there's no precedent on point, then is there anything for him to be impartial about? I mean, if there were no SCOTUS precedent supporting a right to Foobar, then Foobar shouldn't rightly be recognized anywhere, should it? Kind of a Devil's advocate question.

[Mike]

I see what you're saying, but here's what I'm saying. Let's say we live in a pre-Glucksburg world. I file suit in the Fifth Circuit, arguing that included in the right to privacy is the right to assisted suicide. Given that no precedent would address this, but that the Fifth Circuit panel that hears the case would have to address my argument, can't we say that we would know how Judge DeMoss would vote? Would be be impartial on that panel?

[Norm Pattis]

Perhaps DeMoss will be the next nominee to the Supremes.

[Guest]

I totally hear ya. But I'm thinking that in the absence of a solid precedent, his clear preference, no matter how wrong, wouldn't be any more formally objectionable than Thomas's preference for historical arguments or Breyer's for purposive/pragmatic arguments. I agree with you that in a sense his mind would be made up beforehand, but I don't think it would be any more made up than any other judge's, and I don't think there's anything you could really do about it except pitch him something else if you want his vote.

[Lisa Stone]

Amen. As I am about to post on Legal Blog Watch, I would love to hear from blawggers who have thundered (in defense of Messrs. Roberts and Alito) about the differnce between an attorney's role in service to a client and the appropriate circumspection of a judge fulfilling a very different job description. This judge purports to act as a citizen, while carrying the mantle of the bench. That is a very poor reflection indeed on the 5th circuit -- and Mr. DeMoss. I wonder what his colleagues have to say about his affect on that court's credibility and future work.

I think you should write an op-ed to the Chronicle and engage Mr. De Moss in a public debate along these lines. Well done!

[Tonya]

I'm torn on this one. One one hand, you have a judge who is stating his opinion on issues that may come before him & letting the world know his biases. On the other hand, it's refreshingly honest to hear a judge admit that he has his mind made up about certain issues. I don't care how much wind you put into your arguments - w/some judges you know what the outcome will be going in.

[markm]

Was it DeMoss or the publisher that decided to include "judge" in the byline? It shouldn't have been there.

I want judges in their official capacity to follow the law, not their opinions about what the law should be. However, judges are still citizens; they get to vote for legislators, and hence for or against certain changes in the laws. A judge has the chance to form very well informed opinions about what the law should be, and I don't think they should be discouraged from expressing these, as a private citizen. If they can't keep their opinions separate from the law then that's a problem, whether or not they publicly express their opinions.

This job requirement of separating private opinions from decisions made on the job is not at all unique to the judiciary. As an engineer I have sometimes told my employers that a plan under consideration would not work, and then after the decision was made in favor of it did my best to make it work. I think it's only people hired one case at a time, like lawyers and mercenaries, that have the luxury of always choosing the side they agree with.