Then she put these types of writings in context with how she would rule from the bench. “This is an academic article,” Pillard said. “Academics are paid to test the boundaries and look at the implications of things. As a judge, I would apply established law of the U.S. Supreme Court and the D.C. Circuit.”
Is this right? Do we really believe that a professor’s scholarships would have no implication on her views as a judge. Certainly, judges are supposed to apply established law of the Supreme Court and the Circuit. But there are cases of first impression, or more likely, cases where the precedents do not definitely resolve a case (on the D.C. Circuit perhaps more than on other courts). Is it not fair to look to a scholar’s articles to ascertain how she may resolve these issues?
I haven’t read any of Pillard’s work, and have no thoughts on the answers she provided. But, in the abstract, aren’t law review articles fair game?
And if so, then we run back into the “trimming the sails” argument. Only those with the shortest paper trails can sail through.