On Judges
If. as I believe, law is an essential foundation of democratic government, then the appointment of impartial and non-partisan judges is also essential. When we adopted the Constitution in 1789 we incorporated the British tradition of an impartial judiciary and the common law, importantly expanded by the Supreme Court’s decision in Marbury v. Madison in 1803 that courts had the last word in determining constitutional issues as well. That decision unavoidably involved the courts in resolving political issues and put a premium on a non-partisan approach. Deciding a dispute as to the meaning of a law or invoking a constitutional provision to invalidate an act of congress or the president is not a license to substitute one’s own views as to policy, but simply authority to determine what the words permit or require in a limited factual situation. A political problem does not require a partisan resolution although it may have a partisan result. The process is intended to yield an impartial and objective decision. The judicial function is simply to apply pre-exising legal rules to facts, not to dispense justice by any other standard.
The problem, of course, is that judges are human. Total objectivity is not possible. The best we can do is to create a process designed to limit what it is permissible to consider, require a reasoned decision disclosing its basis,, test that reasoning through appeals, and instill in judges a professional ethic which requires them to be as objective and impartial as possible. The actual or potential participation of several judges in the decision plus the constant pressure of peer review tends to flatten out partisan viewpoints, and judges are urther enjoined to avoid participation in matters where a present or past relationship could reasonably be thought to influence their view.
That system has worked pretty well over the years in giving the public confidence that disputes will be resolved in a fair and impartial manner. Public policy is for the public to determine through its elected represntatives, subject to the limits on political power set forth in the Constitution. If there are problems due to judges overstepping the bounds of their limited authority and “legislating” in a partisan manner, one would think the solution would be, to the extent possible, to make it even more objective and less partisan. I believe both parties are doing the opposite and their thoughtless rhetoric is weakening the courts and the rule of law.
Words such as “law” and “facts” convey an illusion of certainty to a process of decision that has uncertainties., One must accept – not exploit—the unavoidable fact that there are some disputes where how the langiage of a legal rule applies to a set of facts is not clear. In these cases different judges may see the facts differently as a result of their own life experience, or for similar reasons differ as to how the words of the legal rule apply to the perceived facts. Rules designed to fit typical recurring fact situations may be difficult to apply to new and unanticipated ones The broader the language of the rule, the more the potential uncertainty. We can and do employ techniques to narrow the area of uncertainty, but I see no way of eliminating it.
The public perceives the process as one in which there is a single “correct” decision in all, not just many or most, decisions. At the same time, they, like the judges but without the discipline of the legal process, may differ as what is the one single correct result. The perception of the single correct decision suggests that those who differ from the critic do so for improper reasons; bias, partiality, partisan views. To some extent the language employed by lawyers reinforces this perception: a decision is “reversed” because of “error”. Where the decision involves an issue on which there are strongly felt views of what is “right” or “just” or “fair”, the unhappy part of a divided public can easily be persuaded that the decision is the result of improper partisan views. In such cases judges, however conscientious they attempt to be and whichever result they support, are bound to be accused of impropriety. The Supreme Court, which gets the most difficult cases from which there is no appeal, is an obvious favorite target.
Attacks upon courts are particularly dangerous to our democratic government because they weaken public confidence in the rule of law, the integrity of judicial decision making. Suggesting that courts improperly legislate strikes at the heart of a government of laws. Of course courts make law incrementally; they cannot avoid doing so. Every decision whatever its result adds to the body of precedent which other judges will invoke in the future. In that sense law is always what the courts say it is.
If there are problems with the process then politicians should be trying to correct them. In my view the quite ridiculous rhetoric they employ serves only to destroy judicial credibility. Further, their efforts to improve the process only serve to make it worse, not better. By and large they see improvement as attempting to appoint judges who will decide cases which support their policy preferences – a process which, if successful, would serve to politicize the courts and increase the problems of which they complain. They do this under the guise of examining the competence of the judge. If he or she appears to support the political views of one party they are seen as competent by it and demonized as incompetent or biased by the other.
There is no reason why potential candidates for appointment to a court should be interviewed by lawyers in the Department of Justice or, even worse, by persons in the White House. There is nothing that can be determined in an interview about competency that cannot be better determined by other means. The message to the candidate and the public is that they are seeking his or her views as to potential decisions on difficult contemporary issues and that the appointment will depend on answers consistent with their political preferences. Put differently, the interviews are designed to assure the interviewers that the candidate, if appointed, will act in accordance with their policy preferences, not in an uncommitted and objective manner. Even If the candidate is not asked, or refuses to answer, questions about future decisions, the purpose remains the same and seeks to determine indirectly what cannot properly be asked directly. The process tells the public judging is political so let’s make sure it is our political views which prevail.
The process of interviewing and nominating candidates in this fashion encourages opposition in the subsequent public hearings where the other party tries to bring out political bias and asks questions which again tend to underline the political potential, particularly in Court of Appeals and Supreme Court nominations. The hearings thus suggest distrust for the fairness and objectivity of the judicial process. Further, rather than encourage impartiality and political neutrality in the cases which will come before the judges, it tends to license those qualities which politicians decry publicly and seek to enhance privately.
There has always been a political aspect to the nominating process because federal judgeships have been coveted by many lawyers. That is still true, although perhaps less so than in the past because the gap between judicial salaries and what prominent lawyers can earn has substantially increased. Nevertheless, there is no lack of qualified candidates. Suggestions as to whom the president should nominate come from elected officials of the President’s party, perhaps a questionable source for honest evaluation of their potential judicial credentials. For that reason, Eisenhower’s Attorney General, Herbert Brownell made arrangements with the American Bar Association to evaluate in strict confidence the judicial credentials of a candidate whose name was sublmitted to a special committee of the Association with a member in each judicial circuit. Because the appraisal was confidential the committee could get the candid views of both outstanding lawyers and judges of different political persuasions – persons who had a professional interest in the legal competence and character of the candidate. I use the word “character” to cover such factors as dedication to the process, personal courtesy to colleagues and lack of arrogance, and reputation for honesty and personal integrity. The system depended on the quality and dedication of the Committee members who were not permitted to suggest candidates themselves . It may not have been perfect; for example it had difficulty in the south prior to the civil rights revolution determining racial bias since most of the lawyers and judges in the reason shared it. But, on balance, it worked quite well.
This use of the ABA was abandoned by the Bush Administration on the ground that the ABA was too “liberal”, presumably because it found qualified judges whose politics were to the left of the Administration. Substituting he Administration’s judgment for that of the non-political ABA again suggested a desire to politicize the courts. I find it difficult to imagine a group more interested in appointing judges who are legally qualified, unbiased and committed to the legal process than lawyers. After all, lawyers are on both sides of litigated cases.
I do not mean to suggest that those lawyers who have liberal or conservative views on political issues may not see the legal rule or the relevant facts somewhat differently and this may affect their judicial decisions. I do believe that the legal process, as well as respect for their limited policy function and the views of their colleagues tends to mute those views. Further, judges are appointed for life and their views on the issues of the day tell us little about the issues of a decade hence or how a nominee would view rules or facts unknown today. Our best insurance against bad judging is the appointment of highly competent lawyers with personal and intellectual who are committed to the process and the limited policy function of judges.
Of course there are a few judges who, on occasion, fail to exercise the restraint which is essential to the judicial function. I happen to think there are more in recent years and I attribute this to efforts to seek candidates less for their competence and more for their political ideology. Ideologues make terrible judges, and the whole of the judicial process is designed to curb such personal convictions whatever their political merits in he public forum may be thought to be. Nor have Supreme Court Justices always been as constrained as their function requires or as unconstrained as some critics would have it. It is fruitless to attempt to predict how a judge may evolve over time as Presidents have sometimes discovered. Eisenhower was unhappy over his naming of Chief Justice Warren. Truman was surprised at Justice Jackson’s about face on the President’s seizure of the rail roads. Those who vigorously opposed Felix Frankfurter as too liberal must have been surprised at the conservative appoach he so often expressed as a Justice. Republicans must be somewhat surprised and politically embarrassed by the fact that the Court dominated by Republican appointees was the Court which decided Roe v. Wade in an opinion written by Justice Powell, a Republican appointee and former President of the ABA.
Sometimes the failure of Congress to act on an urgent public problem leads the Court to go further thanit would otherwise choose. Brown v. Board of Education and Roe v. Wade are examples. Om the other hand decisions such as Miranda, which spelled out more rules than the case called for, or Bush v. Gore, which was unnecessary and stretched Equal Protection in new directions, appeared unfortunately political. Judicial restraint is particularly subject to question when it creates new constitutional rights rather than policing excesses of congressional or executive decision making. The practice is, and should be, to avoid constitutional questions whenever possible and to use judicial power to keep government open to the democratic process of decision making.
It is time politicians in both the executive and legislative branches stopped playing politics with judicial appoinments and concentrated on appointing judges who are competent and respectful of the judicial function in our society. Phony arguments about “judicial legislation” even in the rare case where the Court may overreach are destroying public confidence in a critical aspect of our democracy and an institution which, by and large, has worked well. The judicial function may not operate perfectly but that is scarcely a reason to make it worse.
