What judges do

Judges are in the crosshairs. The possible filibustering of some of President Bush’s judicial nominees has Senate Republicans mulling a “nuclear option” to force the nominees to a general vote, while Democrats fire back that they are under no obligation to allow “extremist” nominees assume the bench. This comes on the heels of the Terry Schiavo mess, which caused some congressional Republicans to accuse the judiciary of being a bit too independent. And all of this is a prelude to the Big Kahuna: an upcoming vacancy (or two) on the Supreme Court.

Bush has already said that he would nominate judges in the mold of Justices Clarence Thomas and Antonin Scalia should one of the Justices retire, and this has prompted a far-ranging debate over how judges should interpret the law. Normally this would be an interesting discussion, except there’s been one crucial thing missing: A real understanding of what judges actually do.

One answer is that judges decide cases, but that’s far too pat; a properly flipped coin could decide cases too. In order to decide cases, judges must apply existing law to the facts before them. For many, this is the most satisfying answer. But this, too, is not enough. Ultimately, it must be said, the role of the judge in a representative government like ours is to serve as the go-between twixt the legislature and the people. The judge serves the people by applying the law to their cases, while the judge serves the legislature by showing how their laws affect society.

In other words, as much as a judge sends a message to the parties of a case when she rules in favor of one or the other, that same judge is sending a message to the legislature about how the law in question produces results. If the legislature doesn’t like those results, it can go about changing the law to something that will do better.

This aspect of the judge’s job has gone largely neglected in the wider debate over whether particular judges are fit for office. The usual argument has been to compare results of particular cases and how awful it would be if a contrary result were to occur. For example, those who support a constitutional right to abortion as conceived in Roe v. Wade fear any interpretation that would not find that right. But this is shortsighted. There is more at stake than whether a particular case goes one way or the other; the real issue is how our entire system of law functions.

The genius of the separation of powers in the Constitution is that those who make the laws are different from those who must apply them, reducing the capacity of either to abuse their power. Yet these two sides must work together. If the judiciary is all over the place in applying the laws, the legislature will be unsure as to how to craft a law that will achieve the legislature’s goals. While no one expects all judges to think the same, a common consistency is integral for legislators to depend upon.

This consistency is at the heart of Justice Thomas’ originalism, where the original intent of those who wrote the law in question is used to interpret that law, and Justice Scalia’s textualism, where the intent of the drafters is derived from the actual words used in the law, read fairly. While these two approaches can come to different conclusions on interpretation, each has a defined and rigorous approach that would allow a legislator, when crafting a law, some guidance as to how that law should be written to obtain the results the legislator desires.

Compare this to the idea of “living constitutionalism,” where the Constitution is interpreted according to the perceived social realities of the present day. While this may provide instant results that many find agreeable, it takes the updating of law from the hands of the legislature, which represents the will of the people, and puts it into the hands of unelected judges. This either gets legislatures in the habit of letting judges promulgate the updates-in effect creating new laws and thereby degrading the separation of powers-or it makes politicians angry at the judges. Both scenarios are rife with potential abuse.

University of Chicago Professor Cass Sunstein may be right that some proponents of originalism and textualism simply favor the results those approaches garner more than what living constitutionalism has wrought, but for the most part he’s wrong. An originalist or textualist may oppose a constitutional right to abortion, but both would uphold one should Congress and the states enact an amendment to that effect. In other words, at heart, originalism and textualism are about form, not results. If the approach to law is consistent, then Congress will have a clear view of what it needs to do in order to give effect to the will of the populace it represents.

In evaluating judges, Congress needs to look beyond the mere results of particular cases and reflect on how a particular judge’s approach to the law would affect how Congress does its own job. While a judge who emphasizes “social justice” or “democratic institutions” in their jurisprudence may give some politicians what they like to hear, how can one write a law and predict its results when a horde of such judges, each with a different set of personal priorities, await to implement it?

James N. Markels is an attorney and a regular columnist for Brainwash.

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