Race 4 2008 is please to present the following interview with Giuliani Judicial Advisory Committee member Ron Cass.

Mr. Cass served as the Dean of Boston University School of Law and is the Former Vice-Chairman of the US International Trade Commission. Mr. Cass is currently President of Cass & Associates, PC. It was announced last week that he will serve on Rudy Giuliani’s Judicial Advisory Committee.

In this interview, Mr. Cass discusses his own judicial philosophy, the proper role of judging and the courts in our system, and why Rudy Giuliani is the right choice for Republicans who are concerned about the future of the American judicial system.
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KWN: Could we begin by hearing a little bit about your own judicial philosophy and your view of the proper role of judges in our system?

Ron Cass: Let me start with the goal for judging. Because what judges do effects people in a way that is very special in our system. Most of the time when you’re dealing with pronouncements-Congress passes a law; the President makes an executive decision-usually that affects people in the future. You get a chance to see what the law is going to be and you get to adjust your behavior to take account of it. Courts make decisions that are retrospective, so they have the effect that you go to court and they tell you if what you did was right or wrong. That’s a special power in government, and it’s one to be especially careful with because you can’t adapt backwards. But you can in the future look what courts have done and make adjustments. But the people who are in front of the court are affected immediately and they don’t have a chance to adjust their behavior. So we have adapted rules over time for how courts ought to operate that are different than the rules we have for the political branch.

They are insulated from politics. They are insulated in terms of who can talk to them and about what. The take their time, read material, think about it. What is most important about courts is that their conduct be predictable, and that we can be able to predict their behavior from material that is already accessible to us and that it’s the same for everybody. That is what the Rule of Law is all about. You need judges who are doing things in a predictable way based on the materials available without regard to which judge you happen to get or what person is in front of a judge. So I don’t need to figure out that if I get caught doing a particular something that a particular judge in a particular court will treat it one way, a different judge in a different court will treat it another way; one judge will treat redheads one way this way and brunettes another way. I don’t need to know any of that to know what my conduct has to be to fit within the law. That means necessarily that what judges ought to be doing is to be making decisions based on exactly the sort of legal material that other people have access to.

What [did it] mean to the people who wrote and adopted and ratified the law? What it would be understood to mean by the people at the time it was written and how we can carry forward that understanding in ways that other can predict and adapt to. So when you talk about a law written by Congress, you look at the text of the law, you look at the context, and you look at the meaning. You try to be as clear as possible about what it was that Congress passed, not what they might have passed, not what somebody in Congress said they thought they were going to do, not what somebody hoped to do, but what they actually did.

Same with the Constitution. You want to look at the actual words in the Constitution; at the structure, at the context of the Constitution. What this means in the context of the document that we have. What was the understood meaning of those words was, is, has-been. And you also want to look at the court’s precedent that interprets the provision. Because those are also things that people will look at to try to predict how the court will understand and apply the Constitution. I don’t know whether any simple label like Strict Construction can adequately capture that. But that is what I think judges ought to be doing.

A lot of times when people use the term Strict Construction or Texturalism they mean exactly the same thing I just described. A different approach to the Constitution would be something, let me give an example-Ronald Dworkin, a famous legal philosopher says that the Constitution, and Constitutional decision making, is like writing a novel with different people contributing different parts. And what you ought to be doing is asking, given the materials at hand, “how do you make this the best possible novel? How do you make the Constitution the most moral, the most advanced, the most thoughtful document it can be?” I think that is exactly the wrong set of questions to ask. You don’t want to have judges make the law what they think it should be. You want to ask judges to interpret the law as predictably, as clearly, as honestly as they can according to it means to those who have gone before and written the materials thereupon. That’s what I think the job of judging, properly understood, is. And that’s what I think we ought to ask our judges to do.

KWN: How did you come to the decision that Mayor Giuliani is the best person to choose the kind of judges that would promote your conception of the proper role of the judiciary?

Ron Cass: Mayor Giuliani is a lawyer. He has been involved with the law for a long time. He has a great respect for the law. He has served in a variety of capacities as Associate Attorney General, as a U.S. Attorney, as a Mayor. He has shown that he cares a great deal about the law. He has a passion for trying to make the country better. As a political official, he has an agenda that he wants to do. But he understands that that agenda is pursued through the popular vote and through legislation and through the appointment of people in the executive branch. It’s not done through using the courts to advance an agenda. It’s done through using the courts to be predictable and honest and to have the sort of integrity that judging ought to have.

When he was a prosecutor; what prosecutors need to have is courts that understand and apply the law. When he was Mayor he needed to have a court system that operated in a predictable and understandable way. People can pick and choose anything they want to say, “well, I particularly agree or disagree with this one decision or this one comment.” But he has through his career been somebody who has clearly evidenced a devotion to the law and an understanding of the importance of the law. My strong sense of him is that he is somebody who is going to pick judges who have exactly the same understanding of their job that I have.

He was involved as Associate Attorney General in helping to advise Ronald Reagan which people to pick for judges. And I think that Ronald Reagan picked a lot of excellent judges for the courts.

KWN: Mayor Giuliani’s statement that a Strict Constructionist Judge could either overturn Roe or view it as precedent has been cause for alarm among some conservative court watchers. How would you address the concerns of people who cannot fathom how a judge in the mold of Scalia, Thomas, Roberts, or Alito could view Roe as rightly decided?

Ron Cass: Let me give three different responses with apologies because this will take some time.

First of all, whenever you’re appointing a judge you want to avoid anything that looks like a litmus test. I have said over the past many, many years that it is wrong for the Senate to be asking judges essentially to take an oath that they’ll uphold Roe v. Wade or any other decision. It’s wrong for people to ask judges to predict in advance what votes they will cast on particular decisions. The whole point of what we want judges to do is to deliberate outside the legal process, outside of legal pressures, to look at the material themselves. Not answer how a President or Senator really wants them to give in order to get past the appointment/confirmation hurdle. We want judges to be careful, dispassionate guardians of the law; to make their decision according to the text and precedent, and not according to politics. So whether it’s Mayor Giuliani, or President Bush, or President Reagan nobody’s whose President should be asking people to satisfy a particular litmus test one way of the other. Whether it’s pro-Roe or anti-Roe, or pro or anti any particular position. So I think people who focus too much on this and are asking a candidate to get assurances that a candidate perhaps on the Democratic side that perhaps favor Roe and on the Republican side oppose Roe; I think on both the Left and the Right people who ask this of a presidential candidate are making a mistake.

Second part of the answer… When you look at what courts do, how they proceed, it is important to understand what materials they have in front of them and what weight those materials get. When Roe was decided, the materials in front of them included very few precedents that in any way supported the Roe decision. You have the Griswold case which sort of came out of nowhere in terms of its construction of the Constitution. Justice Douglas, who wrote the case, couldn’t find a particular provision to say supported his conclusion. He said that there were emanations from penumbra of a variety of provisions of the Constitution. That’s a clear way of saying that, “I’m making this up.” And Roe is following directly in the footsteps of Griswold in creating a constitutional right that you have to strain mightily, to torture the text in a way that will produce that right.

One can say there are rights to be left alone and you can go back to certain Constitutional text and can hang you hat on that. But to say that there is a right to be free from certain types of regulations in this trimester and others in that trimester and others in the third trimester. The framework Roe created, the rights they articulated, it’s very difficult to defend this as principled constitutional construction.

Rudy Giuliani understands that and has said very clearly he believes that Roe was wrongly decided. He has had different things to say about what he thinks the right policy is in terms of abortion policy. But he understands the difficulty with that decision when it was rendered, and he understands the difficulty with the approach to constitutional decision making embodied in Roe v. Wade.

Third part of the answer… When you ask somebody if Roe was rightly decided, that’s a very different question than asking them thirty years later what should the Court do today? After Roe, some of them give a different basis for the decision that was given in Roe, even if they claim to be affirming Roe v. Wade. Some of them clearly cut back on the rationale that underpins Roe. When you ask people today how you should decide cases involving the government’s ability to regulate abortions. They’re not writing on a clean slate in the same way that they were when Roe was decided. And I think it’s perfectly legitimate to say that you want courts now considering the precedent as well as the text and context. I’m somebody who gives enormous weight to the text itself. I give enormous weight to the text and construction of the Constitution over pretty much anything else. But when people look at some fields of law, they very readily overlook the weight we give to precedent, and let me just give you an example. There are First Amendment cases that come up before the Court, freedom of speech cases. When the document was written protecting the freedom of speech, it was understood at the time to be an incredibly narrow protection. But we have built up a body of precedent, particularly over the past 60-70 years, it would be a real jar to have courts say suddenly we are throwing out 60 or 70 or 80 years of precedent and we are going to begin to making decisions without regard to what we have been deciding during that time. It would make the law less predictable, not more predictable, at this point. So I think that it’s fair for Mayor Giuliani to say, look-he isn’t asking anyone to pass a litmus test, but he is acknowledging that Roe was wrongly decided. But he is saying that at this point today what judges do with that is something that has to take account not only of the text and construction of the Constitution, but also of precedent.

KWN: Conservatives have felt quite frustrated with the pace of the confirmation process in filling vacancies to the federal judiciary. Would a President Giuliani exert more pressure in order to get these vacancies filled?

Ron Cass: Mayor Giuliani has said pretty clearly that he thinks the pace of confirmations has been inadequate. He thinks it is very important to fill the vacancies in the courts and to fill them quickly. He thinks it is very important to have an up or down vote on judges. He wants the Senate to move with speed. He wants the operations within the executive department to move with speed to identify, nominate, and confirm the right sort of people to the courts. So he is very focused on that. Anybody who has been watching the judicial confirmations over the last 25-30 years has seen the pace of confirmations slow down dramatically, has seen the hurdles that a candidate needs to go through rise, and has also seen the focus be shifted from a straight focus on the competent and quality of the candidate and whether they have done something that makes them unfit for the bench to really a focus on whether the candidate will support a particular agenda or not when on the bench. I think that is antithetical to the rule of law, and I think that Mayor Giuliani clearly understands that and will push very hard to get the judges appointed and confirmed expeditiously.

KWN: As someone who will be advising Mayor Giuliani on judicial matters, it would be interesting to hear what judges you admire, or perhaps what judges you feel best embody the judicial philosophy you outlined earlier.

Ron Cass: There are many judges that I can point to that embody that, and let me just give you sort of a handful of examples of the sort of judges that do. And let me also say that they differ one from another in terms of exactly what weight they give to text, or to history context or structure or precedent and they’ll differ from one and other.

But Justice Scalia, Chief Justice Roberts, Chief Judge Douglas Ginsburg for the D.C. Circuit, Judge Randolph of the D.C. Circuit, Chief Judge Easterbrook and Judge Posner of the Seventh Circuit; all of them have all been very thoughtful judges.

Judge Posner would be the one that would be the most creative in terms of the way he approaches the law from this group. Justice Scalia would be the one who gives the greatest value to text in the group. But all of these have been judges who have been thoughtful and very careful to be looking at the way a judges job should be done.