Wednesday, April 19, 2017
Vacancy On Supreme Court 2017 - Round 2: Report On Interview #9, Mr. Peter J. Rusthoven
This is Prof. Joel Schumm's report on the 9th interview of Round 2
In response to an opening question about collegiality and if he had one regret from his professional experience, Peter Rusthoven said he has never had difficulty viewing opposing counsel as someone doing their job. In one particularly heated case, he responded to a lawyer “chatting him up” that they were not friends.
In response to a question from Mr. Feighner about measuring up the example of former justices (Powell, O’Connor, Dickson, and Rucker), Mr. Rusthoven said they did their homework and treated individuals well. He appreciates the way Justice Rucker grasps the issue and gets to the heart of it in his questions at oral argument.
In response to a question about a life lesson he hopes his children would learn from him, Mr. Rusthoven discussed the importance of honesty, not sacrificing integrity for any reason, and not giving up.
In response to a question about his commitment to judicial restraint, Mr. Rusthoven said he is as committed as one can be. It is vital that each branch of government “stay in its own lane.” The executive and legislative branches can be booted if they step out of line. Judges should be umpires, following and enforcing the rules, not being philosopher kings and queens. One of the reasons the U.S. Supreme Court nominations have become so contentious is because the Court decides issues based on considerations other than text, and the process is now viewed as “one of nine votes for a super-legislature.”
Mr. Rusthoven went to law school with Merrick Garland, who would have been confirmed in a different era — as would Robert Bork. He appreciates that this Court has instead stayed in its own lane.
In response to a question about what he would tell his children about personal responsibility (if a statute does not impose liability for something they have done), Mr. Rusthoven would talk with children about how they will make it right with the person.
In response to a question about his lack of experience in the criminal realm and what he has done to prepare, Mr. Rusthoven said he has kept up on reading and has talked to a couple trial judges about their views on bail. In response to a follow up question, Mr. Rusthoven said he could not walk into a criminal defense case and handle it properly. The Constitution guarantees the right to “liberty,” which is crucial. We have lost something if people believe the system is a machine they get lost in.
In response to a question about the Rooney rule, Mr. Rusthoven said racism is a cancer of American life and we are behind where we should be. He mentioned the importance of ICLEO and his commitment to further the goals of diversity.
In response to a question from Mr. Yakym about his op-eds for the IBJ and how to handle issues where the legislature is silent, Mr. Rusthoven drew a contrast between statutory and common law issues. When dealing with a statute, many times the text provides a clear answer, and other times ambiguity will need to be addressed. Courts then must “reach the best result we can without stepping out of bounds.” When dealing with common law, judges have more latitude to make changes, and something that made sense hundreds of years ago in England may not today. Following up about the possibility of absurd results, Mr. Rusthoven cited the canon and noted there is a body law. A number of things may seem dumb to some, but courts must be careful about invoking the absurdity of results as a reason to look beyond text.
Mr. Feighner commented on proposed changes to the merit selection system, which would have had legislative leaders appoint lawyer members instead of electing them. Mr. Rusthoven said the process has worked fairly well over the years. The process includes different perspectives, and he thinks he has been treated fairly by the elected lawyer members. Commission members bring their own points of view, and the general consensus of the bar is that the system has worked well.
Posted by Marcia Oddi on April 19, 2017 10:42 AM
Posted to Vacancy on Supreme Court - 2017