JUDGING CRIMES

Really, the competition for a featured place in this blog is getting out of hand.  I want to assure all my judicial readers that, whatever you might think, it's not necessary to go to the lengths of Las Vegas Judge Nicholas Anthony  Del Vecchio to get your name featured here.

First, some background on the man who would choose such a remarkably unflattering photograph as his official face to the world.  This is from Las Vegas Review Journal for November 19, 2000:

Del Vecchio, a Las Vegas lawyer, lost seven previous elections before winning a race this month for a new judgeship in Clark County Family Court.

He also sought appointments to four other judicial positions without success. And on yet another occasion, he filed as a candidate for a nonexistent judgeship, later losing a court battle over the issue.

Oh yeah, and it took him five tries to get into law school.

"I was the last of six boys to go to law school," Del Vecchio said during a recent interview in his office. "I did not have the most stellar academic record. I always believed that C stood for commencement, that D stood for diploma, and I graduated 'magna thank godem.' "

Del Vecchio, who often uses that kind of self-deprecating humor, said he graduated from the College of St. Thomas in St. Paul, Minn., in 1979 with a bachelor's degree in sociology. He had a grade point average of 2.71.

"Being a student was always hard for me," he said.

That year Del Vecchio applied for the first time to the William Mitchell College of Law in St. Paul. He continued to apply every year thereafter, until he was finally accepted in 1983. 

You might wonder if the reporter was misreading the new judge when she assumed his self-deprecation was intended humorously.   Certainly some reassessment might be in order following more recent articles:

The special prosecutor for the Judicial Discipline Commission has accused Family Court Judge Nicholas Del Vecchio of sexual misconduct and abuse of power, including coercing a judicial assistant into having a sexual relationship with him.

The complaint alleges that the relationship dates to before Del Vecchio was a judge, when the judicial assistant, the daughter of his ex-wife, was 14.

Del Vecchio took nude photos of the girl when she was between the ages of 14 and 16 and had her perform oral sex on him, the 38-count complaint states. The complaint adds that Del Vecchio kept the photos after he became a judge but later destroyed them.

The document, which is not a criminal complaint, also accuses Del Vecchio of using racial slurs against black and Hispanic court staff and of coercing staff into buying him lunches and airline tickets.

Again with the photographs.  Didn't he learn anything from Woody Allen's experience?  But then, so far as my doctors-waiting-room and supermarket-checkout-line reading has informed me, Woody never "made audio recordings of the [sexual] encounters without the woman's permission." 

Then there's Judge Del Vecchio's (alleged, alleged!) campaign technique, honed in all those unsuccessful bids:

He told a family court employee, Beata Funk, that he wanted to have sex with her and wanted her to wear tight shirts while campaigning for him, the complaint says.

Should we assume from the casual way the subject is introduced that it's part of a court employee's job in Las Vegas to campaign for her boss?  Well, it's an American tradition.  One we can trace all the way back to Andy Jackson, and he's on the twenty dollar bill, after all.

The complaint even alleges he asked one co-worker to take men to dinner saying he "could tell they were interested in her and she could solicit and obtain campaign contributions." The judge allegedly told the worker that "she should dress nice" or "seductively."

The complaint isn't up on the Nevada Commission on Judicial Discipline website yet. 

I've never understood the rationale for applying a beyond-a-reasonable-doubt standard in judicial removal proceedings, though it goes all the way back to Samuel Chase.  Removal from office doesn't mean the offender goes to jail.   

And it's not like reversing the decision of the electorate, either, even in those states that elect their judges in partisan races, because judicial candidates are "ethically" obliged not to tell us in advance what they plan to do with the power they seek.  (Del Vecchio's eight races should have told the voters that he wanted the power too badly to be trusted with it.)

When a judge is removed from office, all that happens is that he or she has to spend the rest of his career standing in front of the bench instead of sitting behind it - a fate many of us think no disgrace.

I think that when there's serious reason to believe a judge has sexually exploited his 14-year-old stepdaughter - when, in the jargon, there's probable cause - that's more than enough reason to remove the judge from the public payroll.  And you know what?  I'd say the same thing about murder, too.

Me-Mo first directed my attention to the case of St. Louis Circuit (i.e., trial) Judge Robert H. Dierker, Jr., a city counselor who lost his race for the state House and settled for being a judge instead.  Dierker has published a book called The Tyranny of Tolerance: A Sitting Judge Breaks the Code of Silence to Expose the Liberal Judicial Assault. 

(Assault on what?  My guess is that the designer miscalculated the type size, hit the right edge before completing the title, and then was too lazy to start over.)

I think we ought to be happy that the friskier piglets in the litter are beginning to crawl out of their pokes.  (See post 7.)  Given that judges have assumed the duty of telling us how to live our lives, basic democracy requires them to run for office on an honest platform, and Dierker, at least, seems to be (rather belatedly) revealing to St. Louis voters the planks of the platform he ran on.

That judges have platforms can hardly be doubted.  Look at this chart documenting the frequency with which judges in a certain court dismiss DWI charges.  Over a period of three and a half years, some judges dismissed over 50% of all drunk-driving cases before them, while others on the same bench dismissed just 20%.   Given the huge volume of cases (17,884) and the relatively long time frame, and given that cases are assigned randomly (unless some behind-the-scenes hanky-panky is going on), it's self-evident that the difference between 50% and 20% dismissal rates is personal, not legal.

These particular judges have to run in one contested election and thereafter stand for retention.  Why shouldn't the people voting in those elections be told ahead of time what the judge intends to do once power is in his or her hands?  Then the people with eight prior arrests will know whom to support.

So in general I think it's a good thing for judicial candidates to tell the voters what they're likely to get for their votes.  And, in a more general sense, I think it's a good thing for judges to tell us how we should live our lives before they whack us for not following their rules.

But Dierker's book suggests he's not really carrying his weight on the St. Louis Circuit Court.  The evidence for that isn't the book itself - Hey, some people write blogs in the evenings and on weekends, and that's far more demanding than this kind of book.  No, the evidence of lollygagging is that Rush Limbaugh's show runs from 11-2 on St. Louis's KMOX.  The judge's writing strongly suggests he's in the habit of calling a recess for his elevenses, and then allowing the break to glide gracefully into a late lunch.  Take a look at this sentence from his book:

Just as we saw with the femifascists, illiberal liberals don't want equality; they want to make some people more equal than others.

(I know what he means about making some people more equal than others.  Why, just a couple years ago some irony-deficient Pepperdinefascist was calling the Supreme Court "first among equals"!)

Now, in that single sentence I've quoted, Dierker compares the "illiberal liberals" to the pigs in Orwell's Animal Farm ("all animals are equal, but some animals are more equal than others") which is to say he's calling them Stalinists.  And, for good measure, he also calls another group of his enemies fascists.  An argument could be made that the tone of this discussion is shading over into a gray area in which reasonable people might fairly disagree about whether it was approaching the less-than-temperate.

There once was a time, far back in the mists of long-ago, when the world wasn't filled with female lawyers.  We're talking, oh, I don't know, practically prehistory.   Like, you know, back when they were singing this kind of thing.  In that hideous year, the year before Judge Dierker started law school, women made up 3% of the legal profession, according to the ABA.  He thought he was pledging a fraternity.

By the time I went to law school, the world had moved on to Burning Down the House and Eartha Kitt's comeback, and the male-female ratio at Northwestern was about 2-1.  The law school prominently displayed the faces of all its writing instructors in its catalogue, even though the instructors were treated as second-class members of the faculty in every other way, for one simple reason: the second-class jobs went to females, and featuring their mug shots tended to disguise how few female professors the school had.  At that time, according to the ABA, 13% of the members of the profession lacked the Y chromosome.

Since then, the ABA tells us, the percentage has doubled.  That's an 8-fold increase just since Judge Dierker was taking his LSAT.  All those women are following in the footsteps of the people he calls "femifascists" - the term apparently being his way of indicating that, unlike Limbaugh, he's not necessarily accusing feminists of signing on to the Wannsee protocol.

Beneath the look-at-me rhetoric, there may even be some ideas in Dierker's book.  Certainly the judiciary's assertion of authority to order elected officials to raise taxes is wildly, almost comically - in a Keystone Kops slapstick sort of way - violative of the separation of powers, though my understanding of natural history causes me to part company with Dierker's contention that "[t]he Constitution died on April 18, 1990" (referring to this Missouri case).   See, the way I figure it, words written on paper can't experience terminal ischemia. 

But does Dierker really mean that we were better off when the Constitution was still "living"?  That's not exactly a conservative position, and almost certainly not what he means when he mourns its death.  Which tells us something about his sensitivity to language.  As Scott Lemieux points out, we're not exactly dealing with a Holmes or Cardozo here. 

What we're dealing with instead is:

• A sitting judge speaking out in a way that gets past the bromidic pap.  That's good.
• A bad writer.  That's not good.
• A writer who gets his ideas from talk radio.  That's trite.
• A judge who insults roughly two-thirds of the lawyers who appear in front of him, and a big percentage of the parties into the bargain.  That's bad.

All in all, the book will probably help Dierker move from the bench to a comfortable perch in a conservative think tank, from which he can draw his judicial pension in comfortable semi-celebrity.  Good for him.  But in the meantime, if I were a female, a Democrat, or a liberal, I would recuse him from every case in which I wasn't absolutely sure, based on experience, how he would rule.  (So would Ann Bartow.  Steve Benen at Washington Monthly points out the essential self-contradiction of the judge's disclaimers.  His belief system doesn't inform his exercise of discretion?  Then what does?)

There's one more thing.  We also have:

• A judge who's about to dump a big chunk of his caseload on his colleagues, who will have to pick up the slack when he's recused from hundreds of cases.  Ask them if they think that's good.

Incidentally, it's worth noting how uncomfortable Dierker's tantrummy anti-feminism makes people on the reasoned right who would otherwise be his allies.  But don't feel bad for him: there are those who decry the shrill tone of the rhetoric employed by liberals to criticize the judge.

Sunday's New York Times looked at campaign contributions to Ohio's Supreme Court justices.  No surprise, the votes follow the money, and the sleaziest judge on the bench is Terrence O'Donnell, who in his first three years on the bench voted for his contributors 91 percent of the time.  Two things tell you all you need to know about Justice O'Donnell.  First:

In 2000, business groups mounted a multimillion-dollar campaign to unseat Justice Alice Robie Resnick, a Democrat who wrote [a decision business groups didn't like] and joined [a] second. One advertisement showed a female judge switching her vote after someone dropped a bag of money on her desk.

Her opponent was Judge O’Donnell. He refused to denounce the attack advertisements, which seemed to backfire with voters.

And the other thing: in the wake of massive public rejection, O'Donnell was appointed to the supreme court by Governor Bob Taft, the living embodiment of Marx's dictum that history repeats itself as a farce.  Ohioans had good luck with their first two major Tafts (there are several thousand minor Taft politicians crawling around the state, too), but they pushed their luck a generation too far.   Anyone appointed by the current proof of genetic regression to the mean should be presumed mediocre until proven otherwise.

O'Donnell defended himself in a written statement: "Any effort to link judicial campaign contributions received by a judicial campaign committee for major media advertising to case outcomes is misleading and erodes public confidence in the judiciary."

As for the contention that it erodes public confidence in the judiciary -  Well, duh.  But as for the idea that it might be misleading: How?  Truthful reporting about a state supreme court is misleading in exactly the same way in which truthful evidence can be "misused" by a jury.  (See post 115.)  Judges deplore the tendency of non-lawyers to reach their own conclusions.

The Times's reporters also dug up a hilarious illustration of the way money addles judicial brains, producing a studied absurdity that would be difficult even for Fielding to parody:

 Unlike campaign contributions, direct gifts to judges, even relatively small ones, almost always require disqualification.

In 2002, for instance, the Ohio Supreme Court reprimanded a lower-court judge for accepting football tickets from Stuart Banks, a lawyer who had appeared before the judge. Yet three of the justices who issued the reprimand had accepted at least $1,000 each in contributions from Mr. Banks in the previous 10 years. Those same justices also sat on several cases in which Mr. Banks appeared before them.

Contrary to the bitter comments of a plaintiff out-shouted by money in Columbus, I don't think most campaign contributions to judges are bribes, or even have the effect of bribes.  I think the effect is both more subtle and more significant.  The Times piece gets close with this passage:

Precisely what contributors want or get for their money is unclear. Some contributors say they have no agenda beyond ensuring that able and independent judges are elected. Others surely hope to influence the justices’ votes in particular cases.

The middle ground, advanced by groups representing business, labor and plaintiffs’ lawyers, is to support justices who hold views similar to their own. “Various interests see voting patterns,” Chief Justice Moyer said. The alignment between contributions and votes, he said, is a matter of shared judicial philosophy.

If that is right, contributors are not trying to buy votes in particular cases. But they are trying to buy seats on the court.

What the reporters are almost but not quite saying is that big contributors know how the candidates will decide cases well before those cases actually reach the court.  Contributors don't shell out the bongo bucks unless they know what they're getting.  (And it ain't philosophy, bub.)

Ordinary voters, however, aren't privy to that knowledge.  It's considered unethical in the extreme for a judge to inform voters what they might expect from the judge's election.   Judges pride themselves on being pigs in a poke.  (See post 7.)  Their highest ethical standard is to ensure that only those with money to exchange for the information will know in advance how they plan to vote, once they encase themselves in the magical black robe.

The Seattle Times is running a superb, Pulitzers-all-around continuing series documenting the extent to which the Washington state courts are run for the benefit of the legal profession, rather than for the public.  The series' subject is sealed cases.   The reporters "found 420 civil cases since 1990 that were sealed entirely".   Four hundred and twenty times King County (i.e., Seattle)  judges decided that the public was not entitled to learn what its government did, or even if it was doing anything at all.  The Times reported:

The 420 cases that we found represent but a sliver of all the sealed records in our courthouses. That number applies only to civil suits in one court: King County Superior. We excluded other types of cases, such as divorce, adoption, paternity or child-custody matters. The 420 also accounts only for cases sealed in their entirety. Many others are sealed in part. We stopped counting those at 1,000.

So what characteristics did the sealed cases have in common?  You guessed it: "Judges and commissioners have sealed at least 58 cases where a fellow lawyer is a party, usually as a defendant. Leading firms, prominent lawyers, judges — all have had files about them sealed."

Perhaps the most mind-boggling story involved a case file that was accidentally unsealed and read by the reporters.  This is what they found:

In 1995, a young man sued Donald Sidwell, an aerospace worker with "top secret" security clearance whose job was so sensitive that he couldn't divulge what projects he worked on.

The plaintiff accused Sidwell of sexually abusing him when the plaintiff was a child. (The Seattle Times does not name alleged victims of sexual abuse.)

Sidwell denied the allegations. His attorney called them "totally false" and likened them to an extortion attempt.

Still, Sidwell agreed to settle.

On Jan. 30, 1997, the parties filed a document saying Sidwell would pay the young man $212,000. The same day, Sidwell's lawyers asked Superior Court Judge Harriett Cody to seal the whole file.

Here's the reason they offered:

Sidwell worked in the "high-security aerospace defense industry." His employer was Lockheed Martin, in Southern California. (He previously worked for Boeing in Washington state, which is where the alleged abuse occurred.) His "top secret" security clearance was granted to fewer than one in 20 employees.

Sidwell's work made him subject to close surveillance and record-checking. Discovery of this lawsuit could mean loss of his security clearance and job. Without his job, he couldn't pay the young man.

So, out of concern "for the plaintiff's recovery and the defendant's livelihood," the file should be sealed, Sidwell's lawyers wrote.

Judge [Harriet] Cody sealed the file.

Yes, you read that right.  The judge sealed the file because the defendant was a national security risk.   The judge, in practical effect, entered into a conspiracy to permit the defendant to maintain his top secret clearance by fraudulent means.

That wasn't an isolated case, either.  Here's a downmarket, Wal- Mart version of the same story:

In 1998, a King County man asked to have three lawsuits sealed. Two accused him of domestic violence, the other of harassment. A different woman filed each one. Here's why he wanted secrecy: The man wanted to be a security guard — a job that can require background checks — and said these lawsuits were in his way. A commissioner sealed all three.

The major justification for the regulatory role assumed by the courts and administered through the tort system is protection of the public.  Here's the Washington Court of Appeals declaring that the seller of a product "has undertaken and assumed a social responsibility". 

But that social responsibility ends in the courtroom as soon as the check and release have been exchanged.   Sealed files prevent the sting of the damage award from having any tendency to alter society for the public's good.  In that way sealing orders in tort cases repudiate the very rationale for such cases.  Sealing orders redefine the judiciary's role down: from enforcer of social responsibility to bagman.

Long Island's John Gleeson, a mere whippersnapper among federal judges (check out his high school graduation photo, taken last year), caused a stir when he declared New York's system of selecting trial court judges unconstitutional.  His opinion certainly makes a good case that the system is outrageously undemocratic.  Here's an overview of the old system from the Village Voice's Tom Robbins. 

By coincidence I recently heard an entirely unfounded and preposterous second-hand rumor that, in New York, a seat as a trial judge (New Yorkers insist on calling their trial judges supreme court justices) can be purchased for $25,000.  The Daily News reported last year that the price was actually twice that.  An outrageously unsubstantiated and irresponsible rumor from a less populous state out west says that a mere $5,000 can get you appointed to a judicial vacancy in that far-off place, where there are undoubtedly no good Chinese restaurants.  The point is, if you can afford to make it to the bench in New York, you can afford to make it anywhere.

But although Gleeson's opinion and the endlessly-unfolding Brooklyn judicial scandal make a good argument that New York's existing system is rotten, it's harder to suggest alternatives.  In America there are only two ways to name judges: elections and patronage.

The first problem with elections is that judicial candidates have customarily adhered to the view that it would be unethical to tell voters what they'd actually do if possessed of the powers of the office they sought.   Deceiving the public by concealing one's intentions is the only ethical thing for a judicial candidate to do.   (See post 7.)   Lawyers can't supply the missing information because judges will retaliate against them (or, rather, against their clients) if they do.

A second problem is that elections, in our modern media age, are financed by bribes.   Last year the Eighth Circuit ruled that neither bar associations (traditional overseers of attorney ethics) nor the people of a state have any authority to prohibit state judges from shaking down litigants and lawyers.

So judicial elections are characterized by the institutionalized corruption necessary to influence voters' votes, coupled with a principled insistence that those votes remain as ignorant as possible.

The alternative to elections is the spoils system.  Forty-five years ago Ari Hoogenboom wrote a great book called Outlawing the Spoils: A History of the Civil Service Reform Movement, 1865-1883.  Somehow - probably thanks to the black-robe mystique - our system of selecting federal judges escaped the goo-goos'  attention.  We still pick our federal judges the way Andy Jackson picked the entire federal bureaucracy. 

Sometimes it happens that  a judge dies, resigns, retires or is removed in the middle of his or her term.  There's really no practical alternative to political appointment in that situation, and it's pretty silly to imagine any system of political appointments could ever be anything but political.

A number of states have instituted what they call "merit selection."  The phrase means that patronage is doled out by an unelected committee rather than an elected governor, and that brings us back to Brooklyn.  A year before issuing his thunderbolt, Judge Gleeson presided over the prosecution of Edward Reich, at one time the head of a judicial screening committee.  Reich went down for the kickbacks he extorted as a court-appointed referee.  But it was pretty sweet while it lasted: he named the judges to the bench, and the judges named him referee, and he took his cut of the money crossing his desk.  That's merit selection in action.

The wonder isn't that both systems sometimes produce clunkers.  It's that sometimes they don't.

In Boswell's Life of Johnson we read: "There are (said he) inexcusable lies, and consecrated lies. For instance, we are told that on the arrival of the news of the unfortunate battle of Fontenoy, every heart beat, and every eye was in tears. Now we know that no man eat his dinner the worse, but there should have been all this concern; and to say there was, (smiling) may be reckoned a consecrated lie."

(As for the battle of Fountenoy, here's a description and here's Wikipedia's account.)

Judge Alito told a consecrated lie yesterday.  His opening statement contained this passage:

The role of a practicing attorney is to achieve a desirable result for the client in the particular case at hand. But a judge can't think that way. A judge can't have any agenda, a judge can't have any preferred outcome in any particular case and a judge certainly doesn't have a client.

The judge's only obligation -- and it's a solemn obligation -- is to the rule of law. And what that means is that in every single case, the judge has to do what the law requires.

The vague concept behind these soothing words is that "the law" exists in some ideal form, floating just out of view of ordinary mortals but visible to the judge.  But of course Alito doesn't believe that.  In practice, and to a significant degree even in theory, Supreme Court justices decide for themselves what the law requires.   To say they "do what the law requires" is for that reason very nearly tautological. 

Within the judicial pyramid, the Supreme Court is - by definition - infallible, even if the Court's infallibility consists solely of its position at the top of the pyramid, the spot where the mystical eye gazes forth from the back of a dollar bill.  As Justice Robert Jackson, one of the most realistic of justices, once said, "We are not final because we are infallible, but we are infallible only because we are final."

Some cases are simple, but many are not.  Most of the time, competing legal rules can be marshaled to point to opposite results, and in some small subset of cases the competing legal rules are equally convincing.  A judge called upon to decide such cases - which is to say, every judge - must resort to a tiebreaker.  The tiebreaker is the judge's core beliefs about the proper role of the judiciary, and of the other branches of government (see post 39), and of the correct techniques of judging, etc.  Those core beliefs constitute one type of agenda, and it's a highly desirable agenda - because the alternative is decision-making divorced from principle. 

In the Supreme Court the role of "tiebreakers" becomes extremely important, because in a certain sense all cases in the Court are "ties."  This is because the Court's docket consists largely of difficult cases, involving legal disputes in which lower courts have reached different results.  But it's also because the justices have the privilege to change the law.   That's what the justices mean when they tell us, over and over again, that they are not an "error-correcting" court.  (See post 8.)   It's more accurate to say they are a "law-correcting" court. 

Because the justices are freed from the necessity of following the precedents of any superior court, they have endless opportunities to prioritize various competing principles of judicial decision-making.  That list of priorities  constitutes a second type of agenda.  All nine of the justices have at least one.

Then again, if you parse Alito's opening statement very closely, you can see that he never actually said that he intended to act in the manner of the idealized judge he describes.  After all, a member of the Supreme Court isn't a "judge" but a "justice", and he didn't talk about justices, did he?  And when he concluded by saying, "And if I am confirmed, I pledge to you that that is what I would do on the Supreme Court", he wasn't specifically referring to his description of the ideal judge, was he?  So maybe I'm wrong to suggest Alito told a consecrated lie.  Maybe he was just being tricky.

During his confirmation hearings, Chief Justice John Roberts said: "I think I should stay away from discussions of particular issues that are likely to come before the court again."  He also said: "I don't want to express conclusions on hypothetical questions …  Those cases come up all the time and I do need to avoid expressing an opinion on those issues."  He said the same thing many other times, too, in many different ways.  No doubt we'll soon hear Judge Samuel Alito similarly being careful not to comment on cases he might be called upon to decide. 

 But is it true that the Surpeme Court decides cases?  In a literal sense, sure.  The Constitution limits the Court's jurisdictions to "cases and controversies".  But the justices themselves frequently assert that they are involved in a more ambitious project.  Justice Breyer (joined by Justices O'Connor, Souter and Stevens), once said: " I realize that we cannot act as a court of simple error correction".  The phrase "error-correction" refers to the ordinary appellate process of reviewing the decision rendered by a lower court in a particular case, to determine if the lower court erred.  Justice Stevens (joined by the late Justice Marshall) spelled it out: "In my judgment this Court's scarce resources would be far better spent addressing cases that are of some general importance 'beyond the facts and parties involved'".  What they mean is that the Supreme Court doesn't, or at least shouldn't, simply decide cases.

This distaste for error-correction is no crotchet of the so-called liberal justices.  Just this year, Justice Thomas (joined by Justice Scalia) opined that the Court should decline to decide a case when the issue presented was not an "important question, but merely a matter of case-specific error correction." 

For the justices, then, there are two categories of cases: those that present important questions, and those that merely require "case-specific error correction."  The latter are the individual cases about which Chief Justice Roberts was so careful not to express an opinion.  The former are denominated important because they are vehicles for announcing rules of broad application.  In one famous child-murder case Justice Stevens wrote: "The emotional aspects of the case make it difficult to decide dispassionately, but do not qualify our obligation to apply the law with an eye to the future as well as with concern for the result in the particular case before us."  By "the emotional aspects of the case" he meant its particular facts.  By "an eye to the future" he meant that the Court should take care to announce a rule crafted to produce optimal results in other cases.  His point was precisely that the justices should put to one side the facts of the particular case in order to announce a rule designed to produce desirable results in (hypothetical) future cases. 

Again, the so-called conservatives on the Court have no quarrel with this approach.  A few years ago Justice Thomas wrote:

We have emphasized repeatedly that the State's use of evidence obtained in violation of the Fourth Amendment does not itself violate the Constitution.  Rather, a Fourth Amendment violation is "'fully accomplished'"  by the illegal search or seizure, and no exclusion of evidence from a judicial or administrative proceeding can "'cure the invasion of the defendant's rights which he has already suffered.'"  The exclusionary rule is instead a judicially created means of deterring illegal searches and seizures.

Of course, only future wrongful searches and seizures can be successfully deterred.   Thus on the one hand we have nominees saying it would be inappropriate for them to express an opinion about cases they might be called upon to decide, while on the other hand we have justices already in office saying it would be a mean and paltry thing for them to decide cases only.  Their job, the already-confirmed justices keep telling us, is not merely, or even primarily, to decide individual cases, but also to decide how lower-court judges should handle hypothetical future cases.

Granted that nominees shouldn't prejudge individual cases, out of fairness to the litigants, why shouldn't they tell us how they would have lower court judges handle as-yet-nonexistent cases?  The conventional position of Supreme Court nominees, boiled down, is that they should be entrusted with the power to formulate prospective rules of universal application to govern American society, and even to alter it fundamentally  – but that American citizens have no right to know what those rules will be until they are imposed on them.