Almost all judges who handle criminal cases (at the trial or appellate levels) are referred to as being "pro-government" or "pro-individual." Do these terms make any sense? Does calling a judge "pro-government" tell us anything about the judge? I think it does, though not for the usual reasons.
Many times when someone calls a judge pro-government, they're saying the judge will do whatever it takes to side with the government. The laws and facts will be manipulated for the greater good - which means, so that that government will win. Other times it means that the judge will give all close calls to the government. If an evidentiary ruling is a matter of the trial court's discretion, then that discretion will be exercised in favor of the government. The third context refers to how appellate judges, and especially Supreme Court Justices, will decide criminal procedure cases. That's the context I'll look at here.
I'm not sure it makes sense to call a judge pro-government because he always seems to side with the government, because that implies a conscious effort to twist the law in favor of the government. I'm sure that happens sometimes, but most of the time, I think something else is going on.
So much of our criminal procedure jurisprudence turns on quasi-objective tests. An officer "seizes" a person, thus triggering the Fourth Amendment, when an objectively reasonable person would not feel free to leave. Police "search" something only when the item searched is something in which a person would have a reasonable expectation of privacy.
Although the salient word is "reasonable," this really has a subjective element: it means reasonable to me. If the police stopped Justices Scalia or Kennedy to ask them questions, they would feel free to leave. They're powerful people, and so police harassment is the last thing they need worry about. If a police officer harassed them, these strongly pro-police Justices would have the officer's head served on a platter. Because they have nothing to fear, because they are members of the power-elite, if a police officer said, "Stop! I need to ask you some questions," they would feel free to leave.
What of the rest of us? How many of you, if stopped by the police,
would feel free to leave? Almost none - even those of you who know
your rights would likely do what you were told. Still, because Scalia
and Kennedy, e.g., would tend to hold that a citizen is not seized when
told by the police to stop, doesn't make them pro-government hacks. It
just means they don't know any better. Indeed, their failing, if
anything, is being out of touch with the common man. Having never felt
powerless, they usually lack empathy, Scalia's Confrontation Clause jurisprudence being a major exception.
I've long thought that Scalia's obsession with the Confrontation Clause had little to do with his pseudo-originalism, and more to do with his Catholicism. Given that his son is a priest, and that he is a lifelong Catholic, he probably has known (or knows someone-who-knows) a priest wrongfully accused of child molestation. The only thing protecting the priest is the Confrontation Clause. The only thing protecting a father from the nuclear option in a divorce proceeding (re: false child abuse allegation) is the Confrontation Clause.
Breath in Scalia's dissent in Maryland v. Craig. Don't just read the words, but close your eyes and inhale them through your nose. Listen with your gut, not your ears. Imagine hearing Scalia reading these words:
Here, by contrast, we know that it is [closed-circuit television monitors are needed] precisely because the child is unwilling to testify in the presence of the defendant. That unwillingness cannot be a valid excuse under the Confrontation Clause, whose very object is to place the witness under the sometimes hostile glare of the defendant. "That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or reveal the child coached by a malevolent adult."
***
And the interest on the other side is also what it usually is when the State seeks to get a new class of evidence admitted: fewer convictions of innocent defendants, specifically, in the present context, innocent defendants accused of particularly heinous crimes. The "special" reasons that exist for suspending one of the usual guarantees of reliability in the case of children's testimony are perhaps matched by "special" reasons for being particularly insistent upon it in the case of children's testimony. Some studies show that children are substantially more vulnerable to suggestion than adults, and often unable to separate recollected fantasy (or suggestion) from reality. The injustice their erroneous testimony can produce is evidenced by the tragic Scott County investigations of 1983-1984, which disrupted the lives of many (as far as we know) innocent people in the small town of Jordan, Minnesota.
It's a powerful dissent, and it's the dissent of someone who realizes that the only thing saving the innocent person from prison is face-to-face confrontation.
