Why Cassell was a “dangerous” choice for the federal bench is a mystery
By Ken K. Gourdin
Author’s Note: I honestly cannot remember if I ever submitted this piece to The Salt Lake Tribune or not. In any event, at over 1,100 words (excluding this rather lengthy introduction), it is too long for publication as an op-ed (which Tribune editors generally limit to 600 words). It is also much too long for publication as a letter to the editor (letters are limited to 200 words). While it may be a moot point in Professor Cassell’s particular case since he has stepped down from the federal bench to return to teaching (the judiciary’s loss is the University of Utah’s S.J. Quinney College of Law’s gain, in my view), the question of how politicized judicial nominations ought to be isn’t going away any time soon.
In the interest of full disclosure, I know Professor Cassell rather well for someone who has but an arm’s length relationship with him: I took his Criminal Law and Victim’s Rights classes in law school. I was in the room when Professor Cassell, his wife, many of his faculty and staff colleagues, and I all watched the Senate vote on his confirmation to the U.S. District Court for the District of Utah on C-SPAN. At the risk of sounding so partisan, I find it interesting how many such votes on conservative nominees like Cassell are “nail-biters” in comparison to votes on more liberal nominees. Conservative senators, while they might not agree with the political leanings of liberal nominees tend (with only rare exceptions, such as Senator Mike Lee (R – Utah)) to confine their inquiries only to whether nominees are qualified, while their more liberal colleagues’ votes often tend to hinge on a nominee’s political views.
This is in response to W.C. Hobbs’ op-ed piece “Utah’s Paul Cassell is a Dangerous Choice for the Federal Bench” ([Salt Lake] Tribune, April 14 ). Hobbs ominously warns us that there is a “terribly dangerous threat”that “extreme political activists” are being installed as judges, and that “extreme partisans on both sides” ignore the law–including the Constitution–in favor of deciding controversies based on their own political ideologies. Hobbs then echoes former Supreme Court Justice Brandeis, who warned against “well-meaning zealots” who, while they attempt to advance beneficent purposes in the name of government, do so “without understanding.” He then warns us against those who, rather than impartially weighing the evidence and applying the law accordingly, seek to “make or break laws.”
Having been placed sufficiently on my guard by Hobbs’ warnings–and having received special notice in the headline that these warnings apply specifically to Cassell–I then looked with an especially keen eye for information which would alert me to the “terribly dangerous threat” which Cassell poses; for evidence that he is an “extreme political activist”; for support of the assertion that he is an “extreme partisan”; for indications that he would “ignore the law” to substitute his own political ideology; and for evidence that–while he is well-meaning–he is a zealot who “lacks understanding” and who would not impartially apply the law.
I was sure that Hobbs, having worked so hard to warn me of the kind of person our representatives should shun when seeking candidates for the federal judiciary, would now tell me why Paul Cassell fits that description. I was even more certain when, in the fifth paragraph, my search was finally rewarded with the damning accusation, “Paul Cassell is such a zealot.” Why? Because, Hobbs tells us, he is willing to offer his services without compensation. Ah, so instead of being wary of the motives of lawyers with six- and seven-figure annual incomes, I should be most wary of those who dare to work for free! Because, Hobbs tells us, he is “well-educated and experienced.” Ah, so it is the ignorant naves who are better qualified to fill vacancies in the federal judiciary than the Stanford-educated lawyers!
Still craving support for Hobbs’ earlier accusations, I read on. Alas, no such support was forthcoming–only more accusations. Cassell, I was told, is “a danger to liberty and to our system of government. His record shows disdain for the Constitution and the Bill of Rights.” Ah, his record! Now, at last, I was sure to be rewarded with concrete evidence as to why this Cassell character is unfit to inhabit the hallowed halls of federal justice. Alas, I was disappointed once again. I thought for sure that since Cassell himself lists six op-ed pieces he has authored or co-authored, along with 14 law review articles and eight appearances before Congress, on his Web page, surely Hobbs would find ample evidence to support his assertions. No such luck.
Instead, Hobbs veers off into an indictment, not of Cassell, but rather of Sen. Orrin Hatch and his support of Cassell’s confirmation. Why is such support so dangerous? Because Hatch supported the nomination of Ted Stewart–and we all know what a rascal he is! We know that because of Stewart’s handling of the dispute between the Tribune and the Deseret News. And why is Stewart so dangerous? Because he dismissed AT&T as a co-defendant, sparing unnamed “friends” from “exposure”–exposure to what, we are not told.
Presumably, Hobbs’ attempts to draw the Hatch-Stewart-Cassell connection by making an argument which runs like this: Stewart was a poor choice to sit on the federal bench. Hatch supported his confirmation. Since Hatch supported his confirmation and since he was a poorly-qualified nominee (according to Hobbs), Hatch supports the confirmation of only poorly-qualified nominees. Hatch supports Cassell’s confirmation, therefore, Cassell is a poorly-qualified nominee. Thus, Cassell should not be confirmed to the federal bench. It doesn’t take a brilliant logician to spot the holes in this argument through which one could drive a Mack truck. Alas, they are too numerous and too wide to be fairly treated here. Whatever disputes Hobbs has with the nomination process in general, Cassell’s nomination is a poor illustration of those alleged shortcomings. Hobbs admits as much when he allows that even in his view, Cassell is a much better qualified nominee than was Stewart.
True, Cassell is on record that there are better ways to protect criminal defendants’ rights than the framework established in the [Miranda v. Arizona] decision. True, Cassell supports amending the Constitution to address victims’ rights concerns. Could either or both of these positions be what Hobbs is referring to when he implies that Cassell wants to tear up the Constitution? Alas, I am still not told. Instead, Hobbs’ expects his own indignation to compensate for the lack of such specifics. It’s as if Hobbs is saying, “The gall! How dare anyone disagree with a legal body as progressive as the Warren Court, which decided Miranda? How dare anyone support amending a document so venerated–so holy–as the Constitution!” Never mind the fact that many of the rights Hobbs is convinced Cassell would destroy are embodied, not in the Constitution itself, but rather in amendments to it.
If it is these positions to which Hobbs is so vehemently opposed, I suspect it is because he would employ the same logic in analyzing them as he has employed in criticizing Cassell’s nomination. Hobbs would likely argue that anyone who favors abandoning Miranda, or who favors a constitutional amendment reflecting concern–not with the rights of the accused but rather with those of their victims–wants to throw all of the rights of the accused out the window.
While I agree with Hobbs that anyone who favors abandoning defendants’ rights altogether would indeed be a dangerous choice as a federal judge, Cassell, contrary to Hobbs’ assertion, is not such a nominee. While Cassell favors abandoning Miranda, he supports other measures which he believes would protect defendants’ rights equally well, such as videotaping police interrogations. And although the Constitution does devote considerable attention to the rights of the accused, there is nothing in the Constitution itself which would preclude an amendment recognizing the rights of crime victims as well.
While reasonable minds may differ on the issues on which Cassell has expressed an opinion, and while the nomination and confirmation process of federal judicial nominees may be overpoliticized, neither one of those assertions, standing alone, is sufficient grounds for opposing Cassell’s nomination, nor has Hobbs drawn a sufficiently clear connection between them for doing so.