December 04, 2007

I'm usually a big fan of Senator Boxer, at least when she's voting the progressive line and not bloviating before whatever committee she's sitting on, but this is pretty weak. Putting the ideology of an appellate nominee under close scrutiny is appropriate, since the nature of the caseload before those courts entails understanding that there is almost always more than one "right answer" to the matter before the court. It's a lesson every lawyer learns in law school, then must perfect on the second day of the bar exam when attempting to puzzle out the day-long section of the test known as the Multistate; the interpretation of the law does not typically lend itself to "yes or no" answers. Contrary to what the current Chief Justice said at his confirmation hearings, deciding what the Constitution means is not the same thing as determining whether a pitch hits the outside corner of the plate.

But James Rogan is not being nominated for the 9th Circuit or the Supreme Court. He's being nominated for a spot on the District Court. In other words, he's been pegged to sit as a trial judge on the federal court, just as he has spent the last couple years as a trial judge in the state court. Whether someone is a good or bad trial judge has almost nothing to do with what his opinions are on, say, abortion or affirmative action, since those issues almost never come up in the lawsuits that are before the court. His ability to maintain an efficient calendar, to show the proper respect to the attorneys who regularly appear before him, to assist the parties in resolving their matters without the expense and hassle of a trial, to guide the jury panel in correctly interpreting the law, and, of course, to apply the facts before the court correctly to the law: that is what trial judges do.

Whether Rogan feels Roe v. Wade was correctly decided is utterly worthless in determining if he should sit on the U.S. District Court. Even if Rogan thought that decision was the most wrongheaded court ruling since Bush v. Gore or Plessy v. Ferguson, he couldn't do a freakin' thing about it. Unlike an appellate judge, who all too often finds the answer he wants first, then looks to the law to provide him his justification, a trial judge is limited to what the facts of the case are, to the remedies the parties are actually seeking, and often enough, the ruling of the jury.

And as it turns out, Rogan's abortion and environmental positions were just a pretext all along; today's Washington Post notes that Senator Boxer still carries a grudge against the former Congressman for his role as a prosecutor in the impeachment trial of Bill Clinton, even though Rogan has since become BFF's with the former President and future President. Which, of course, means that the impeachment is probably itself a pretext, with her opposition being more geared to thwarting the career of a potential rival in 2010.

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