Balkinization  

Friday, September 05, 2008

The Promise Conservatives Expect McCain To Break: Appointing Judges Who Won't Legislate

Brian Tamanaha

One of Senator John McCain’s biggest applause lines in his speech last night was this: “I will appoint judges who…do not legislate from the bench.” Every Republican presidential nominee since Nixon has made this claim, and it always gets a roar from the conservative crowd.

It’s baloney, of course, for two main reasons: judges inevitably legislate, and conservatives want them to legislate.

The fact that judges legislate has been acknowledged openly and often for at least two centuries. As far back as 1833, an American jurist wrote: “as every one knows…courts in point of fact make the law, performing at the same time the office of legislators and judges.” The great English constitutional law scholar A.V. Dicey said in an 1898 speech at Harvard that “all lawyers are aware” that a large part of the law is “judicial legislation.” His renowned contemporary, Frederick Pollock, wrote “No intelligent lawyer would in this day pretend that the decisions of the courts do not add to and alter the law.” A prominent conservative judge of the period, John Dillon, wrote that “stupendous work of judicial legislation has been silently going on” for a “long period.”

Judicial legislation is not limited to the common law, but also takes place with respect to statutory and constitutional interpretation—when judges fill in gaps, resolve ambiguities, and deal with unanticipated situations. Another famous conservative judge, Thomas M. Cooley, wrote in 1886 that “The decisions continue to accumulate as causes arise which present aspects differing at all from any which preceded; and a great body of laws is being made under the statutes which is and can be nothing but judge made law.”

Even the darling judge of contemporary conservatives, Justice Antonin Scalia, acknowledged in an opinion that “Judges in a real sense ‘make’ law.”

Only a person who knows little about law, or a person who is being insincere, would deny that judges legislate. To acknowledge that judges legislate, however, is not to say that they are free to do this any time or in any manner they desire. Nor is it to say that when exercising the power to develop or fill in the law judges are free to inject their preferred political position into the law. Although there is a great deal of disagreement about what judges should look to when engaging in unavoidable law-making, it is almost universally agreed that this should not involve raw political decision making.

This brings us to the second piece of baloney in McCain’s applause line:
Conservatives fervently want judges to change the law in a more conservative direction through judicial legislation. This is hardly a secret. Every Republican president from Reagan to the present has single-mindedly sought judicial appointees with conservative values in the hope that these judges will move the law in a conservative direction. Conservatives from Ed Meese to James Dobson have candidly acknowledged this objective.

When Senator McCain said he would not appoint judges who legislate from the bench, presumably many conservatives who cheered his assertion were thinking “Great, we will get more judges who will make the law more conservative.” This double-speak code has been going on so long that it’s not clear that conservatives even consciously recognize any more that they are cheering one explicit proposition while endorsing its opposite.

They have reason to cheer. It is becoming increasingly clear that three decades of careful screening for conservative judicial appointees has paid off. Judges have steadily moved the law in a conservative direction. And I’m NOT talking about the Supreme Court, where this shift is obvious, but rather about the lower federal courts where the bulk of judicial legislation takes place.

A growing number of studies are providing evidence of this conservative shift in the law, but I’ll just cite one recent study of federal appellate courts conducted by Judge Richard Posner. Posner found that judges appointed by Republican presidents and confirmed by Republican-controlled Senates, covering cases from 1925-2002, voted conservative 55.8% of the time. A second study limited only to currently sitting Republican appointed judges, in contrast, found that the judges voted conservative 66.9% of the time. This is a sizable jump in the conservative political slant of the judicial decisions of Republican appointed judges. Judge Posner drew the obvious conclusion that this shift in voting behavior is the result of “the strong Republican push beginning with Reagan to tilt the ideological balance of the courts rightward.”

So conservatives have reason to cheer when their Republican presidential nominees ritually promise to appoint judges who will not legislate from the bench, as Senator McCain promised last night. It is one promise they are counting on him to break.


Comments:

Only a person who knows little about law, or a person who is being insincere, would deny that judges legislate.

Churchill once said that he would never accuse the other side of dishonesty when a simple explanation of stupidity would suffice. Here, sadly, stupidity won't suffice.
 

Can I then expect a President McCain will point judges who will not only reverse the liberal amendment of the Constitution in Roe to legislate a right to abortion but will also amend the Constitution themselves to legislate a right to life starting at conception which would outlaw abortion?

I think not.

Textualists and originalists do not play the legislation game to anything close to the extent that their living constitutionalist colleagues do.

Reversing prior unconstitutional legislation from the bench is not itself legislation or activism.
 

Prof. Tamanaha:

Only a person who knows little about law, or a person who is being insincere, would deny that judges legislate.

Neither NcCain or Palin are lawyers (as was true of Dubya and Ctheney as well, and see where that got us). Both Biden and Obama are.

But the RW cares little for law in any case; it just gets in the way of RW Authoritarianism .. that is to say, getting their way.

Cheers,
 

I think the quote from Scalia's Jim Beam concurrence is missing some helpful context:

"I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense 'make' law. But they make it as judges make it, which is to say as though they were 'finding' it--discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be. Of course this mode of action poses 'difficulties of a ... practical sort,' ante, at 2443, when courts decide to overrule prior precedent. But those difficulties are one of the understood checks upon judicial law-making; to eliminate them is to render courts substantially more free to 'make new law,' and thus to alter in a fundamental way the assigned balance of responsibility and power among the three branches."

I think McCain's line is just shorthand for the same sorts of traditional "checks upon judicial law-making" and "balance of responsibility and power among the three branches" upon which Scalia (and Marshall and Blackmun!) insist.

As to Posner's data, I don't think that the correlation of results with judges' party of nomination support any interesting claim about improper motivations or the use of non-legal criteria to decide cases. It just shows that the parties diagree about some legal propositions, which I imagine a comparison of party platforms would show readily enough.
 

Prof. Tamanaha:

Only a person who knows little about law, or a person who is being insincere, would deny that judges legislate.

But it makes a great sound bite for those who disingenuously want to forestall discussion on the merits, and claim that an issue is foreclosed by such "structural impediments".

Cheers,
 

For example, on the one issue of abortion, the RW would like to avoid discussion of what circumstances would be important in determining whether abortion should be permitted, because they don't think they'd win with their absolutist position when names and faces get attached....

No such reticence appears, though, when they want to talk about gun control. For that, judicial "law making" is fine, because it gets the result they want to achieve.

Cheers,
 

Chris:

I think the quote from Scalia's Jim Beam concurrence is missing some helpful context:

"I am not so naive (nor do I think our forebears were) as to be unaware that judges in a real sense 'make' law. But they make it as judges make it, which is to say as though they were 'finding' it--discerning what the law is, rather than decreeing what it is today changed to, or what it will tomorrow be. Of course this mode of action poses 'difficulties of a ... practical sort,' ante, at 2443, when courts decide to overrule prior precedent. But those difficulties are one of the understood checks upon judicial law-making; to eliminate them is to render courts substantially more free to 'make new law,' and thus to alter in a fundamental way the assigned balance of responsibility and power among the three branches."


Scalia is more than happy to say that laws say precisely what they explicitly do not say, to wit, that the Eleventh Amendment says that states cannot be sued in federal court by their own citizens against their will.

Cheers,
 

I don't think Scalia thinks the 11A itself means "its own citizens" when it says "citizens of another State." Rather, the 11A confirms the structural principle of sovereign immunity that Hamilton and Marshall, among others, insisted upon during the ratification debates. Without that history, we'd have no Hans, I'm sure. Hans might be right or wrong, but it's not really an interpretation of the 11A itself, and I doubt Scalia could possibly think otherwise. Alden explains this tolerably clearly, I think. See, e.g, at 713 ("We have ... sometimes referred to the States' immunity from suit as 'Eleventh Amendment immunity.' The phrase is ... something of a misnomer..."), 728 ("[S]overeign immunity derives not from the Eleventh Amendment but from the structure of the original Constitution itself.").
 

Chris:

One can certainly believe that within the penumbras and emanations of the 11th Amendment is a traditional principle of sovereign immunity. It's wrong (Hamilton in fact wanted a monarch-like figure (sovereign immunity is the principle that the King can do no wrong) and LOST the debates over executive power when the Constitution was drafted), but it's an argument.

What one cannot do is argue that this is any different than what Douglas did in Griswold, because it isn't, except that Scalia is personally opposed to contraception and thus refuses to reach the result in Griswold while he is personally in favor of discrimination and bigotry (other than against white people) and therefore wants to reach the result that prevents the federal government from providing a remedy for it.
 

"One can certainly believe that within the penumbras and emanations of the 11th Amendment is a traditional principle of sovereign immunity.... What one cannot do is argue that this is any different than what Douglas did in Griswold..."

You're right that sovereign immunity doctrine, such as it is, is an emanation, but the source is important: Alden says it's an emanation from the structure of the original constitution, not an emanation from the 11A.
 

Chris:

I don't think Scalia thinks the 11A itself means "its own citizens" when it says "citizens of another State." Rather, the 11A confirms the structural principle of sovereign immunity that Hamilton and Marshall, among others, insisted upon during the ratification debates.

That's ridiculous. They had to pass the Eleventh Amendment to change the Constitution. But when they did so, they could have said that states shouldn't be subject to suits without their consent, period. They did not.

And where's this "sovereign immunity" that they say is such a "structural principle"?

Scalia makes up this "sovereign immunity" ... when the Constitution was written in teh wake of a war to get rid of sovereign immunity (as well as the sovereign itself). Why the founders would be insistent on recreating this is something that Scalia doesn't ... and can't ... explain.

Regardless, your explanation shows quite clearly that Scalia is capable of reading in "hidden meanings" and "unstated principles" ... when it suits his ends.

Cheers,
 

I'm not sure I can say anything helpful, other than to suggest reading Alden. The view is that the 11A was essentially declaratory of existing law, and that Chisholm was wrong when decided, even pre-11A. Scalia doesn't make the principle up--it's there in Federalist 81, among other places.
 

You're right that sovereign immunity doctrine, such as it is, is an emanation, but the source is important: Alden says it's an emanation from the structure of the original constitution, not an emanation from the 11A.

That's a distinction without a difference, though. Just like Alden says about sovereign immunity, Griswold says that the right to privacy preexisted the Constitution and is inherent in the structure of its provisions. The only difference is, Scalia believes with all of his heart that government SHOULD trounce on privacy to enforce his warped and false conception of morality. It's purely result-oriented.
 

Maybe there is a deeper point in all of this.

By and large the Anglo-Saxon tradition has been to accomplish law reform by legislative action, not by recourse to the Courts so campaigners have accomplished reform in the political and not the judicial arena: UK examples would be William Wilberforce's campaign against the slave trade which led to the Slave Trade Act 1807 and the Slavery Abolition Act 1833, or the Suffragettes whose campaigns led to votes for women with the Representation of the People Act 1918, or the Abortion Law Reform Association's campaign which led to the Abortion Act 1967, or the Homosexual Law Reform Society whose campaigning led to the reforms of the Sexual Offences Act 1967.

In each case the reform was accomplished by campaigns which led a majority of parliamentarians to vote for reform - and while there are those on the firnges who still oppose such reforms, further incremental reforms have followed. The advantage of reforming via legislation rather than by more or less creative legal action is that of keeping the lawyers out of it - with the consequence that the public opinion is more likely to follow the legislative lead.

I still believe that wherever possible law reform should be accomplished by legislative rather than judicial action. People should get stuck in and change public opinion by, protest, by civil disobedience if necessary. Ghandi and Martin Luther King showed the way. Ridicule has its place too.

This from Wikipedia: "As of August 1, 2008, 91 countries had abolished capital punishment altogether, 11 had done so for all offences except under special circumstances, and 35 others had not used it for at least 10 years or under a moratorium- while 60 countries actively retained the death penalty...At least 3,000 people (and probably considerably more) were sentenced to death during 2007, and at the end of the year around 25,000 were on death row around the world, with Pakistan and the USA accounting for about half this figure between them. China carries out by far the greatest number of actual executions - while Amnesty International has confirmed at least 470 executions there during 2007 the true figure has been estimated at up to 6,000. Outside China, at least 800 people were put to death in 23 countries during 2007, with Iran, Saudi Arabia, Pakistan, Iraq and the USA the main contributors .

Nice company the USA keeps. So support international campaigns to have the civilised world boycott goods made in Texas, or vacation travel to Florida. Get sportsmen to refuse to appear at venues in death penalty states.

But resist the temptation to reform by creative litigation. This is dangerous since it tends to place the judiciary too far into the political arena and bring the independence of the judicial branch into doubt.

In a way it is far better to have a Judge say: "What I must now do is obscene - an affront to decency - I call for the legislature to reform this odious law - which however, as a servant of the law, I must implement".
 

Mourad:

My heavens! You and I agree on something.

Your point is not merely a deeper point, it is the only relevant point.

The ruling you posited for the judge reviewing a law he or she did not like and calling on the legislature to correct it is spot on.
 

Chris:

I'm not sure I can say anything helpful, other than to suggest reading Alden.

Just because five justices made an argument doesn't mean it's coherent, much less persuasive [see, e.g., Dubya v. Gore]. Four justices disagreed.

But I'd note once again that appeals to F39 and F81 [which I think are mistaken; particularly F39] to "fill in the gaps" of the Constitution (and to write what was never written there) is to use a political polemic as the source of law, hardly the meat of "strict construction" or "textualism". Which was the point of my original complaint.

I'd note that Seminole Tribe admits that when Congress has the power to abrogate state's immunity (by, to hear the justices, a "clear statement" to that effect) and when it does so, then state immunity is abrogated. It overturns Union Gas for the proposition that the Commerce Clause permits such Congressional abrogation, but admits to the Fourteenth Amendment's power to allow such. But if the Fourteenth Amendment does such a thing, then there is no absolute "sovereign immunity" of states (and the question doesn't become whether they have such, but rather the division of authority between the federal government and the states over the specific subject matter [and recall that the jurisdiction in the cases of suits by citizens of a state against that state must of necessity be "federal subject matter" jurisdiction]). IOW, if there is any circumstance under which states may be haled into court by their citizens against their will, there is no such "sovereignty", at least when the feds say otherwise. They can do what they like in their own courts (they have this "sovereignty"), but the feds make the rules when acting pursuant to a valid federal power (whichis true not only WRT this particular situation, but is generally true of federal/state interactions which also implicate other parts of what "sovereignty" consists of ["sovereignty" being much more than just immunity from suits]).

Cheers,
 

Reichspropagandarat Bart wrote:-

Your point is not merely a deeper point, it is the only relevant point.

The ruling you posited for the judge reviewing a law he or she did not like and calling on the legislature to correct it is spot on.


Self-evidently, it is not "the only relevant point": Under the US constitutional system, the courts are called upon to test the compatibility of legislation with state and/or federal constitutional instruments just as in our country they must now test legislation for compatibility with the European Convention on Human Rights and with EU law. Judges must no more shirk from that task than they must from enforcing legislation where there is no constitutional issue.

But what happens with the "loathsome spotted reptiles"?

(1) Faced with a judicial decision they do not like, instead of commencing the entirely legitimate process of campaigning for a constitutional amendment, they seek to bring the judiciary into disrepute by whining about "legislating from the bench";

(2) They seek to diminish the authority of the Courts by crude abuse, all the more shocking when it comes from law teachers or members and officers of the Court; and worst of all

(3) When they are able to do so, they seek to pervert the independence of the judiciary by only appointing judges with heterodox views.

We have all witnessed Reichspropagandarat Bart posting consistently with processes (1) and (2) and (3)supporting heterodox interpretations of constitutional provisions.

"Heterodox" because, make no mistake about it, "originalism" is a bogus and illegitimate method of constitutional interpretation. No other reputable democracy in the Anglo-Norman legal tradition countenances it - and rightly so.

Why else have the far right foundations donated so lavishly to promote what masquerades as scholarship in academia - and though organisations like the dreadfully misnamed Federalist Society?

Let us not forget the agenda of the The Powell Memorandum nor how it was put into effect - see Landay The Powell Manifesto.

Sooner or later, fascist minded dictators end up sacking the judges who disagree with them - a recent example being Pakistan's last dictator, George Bush's friend General Musharraf. Fascist minded oligarchs seek the same end by only slightly more subtle means.

The USA is not in danger of dictatorship - but it has come perilously near to succumbing to oligarchy by corrupt manipulation of the electoral process.
 

By and large the Anglo-Saxon tradition has been to accomplish law reform by legislative action, not by recourse to the Courts so campaigners have accomplished reform in the political and not the judicial arena: UK examples would be William Wilberforce's campaign against the slave trade which led to the Slave Trade Act 1807 and the Slavery Abolition Act 1833, or the Suffragettes whose campaigns led to votes for women with the Representation of the People Act 1918, or the Abortion Law Reform Association's campaign which led to the Abortion Act 1967, or the Homosexual Law Reform Society whose campaigning led to the reforms of the Sexual Offences Act 1967.

In all the US equivalents, efforts were made to enlist the judiciary as well (with generally minimal success). I know there were such efforts in Britain regarding slavery. Were there none with the other issues?
 

Add to Posner's percentages the fact that the majority of the judges on the federal courts of appeal were appointed by Republicans and you get the current state of the law. The only circuit that has a clear majority of Democrat appointees in both the regular and senior judge category is the 9th -- which is usually described as a "maverick" court. (I wasted an hour one day running through the courts to see who appointed who, but unfortunately didn't write down the numbers, so you'll have to do it yourself if you want actual statistics. A couple of the other circuits are pretty closely balanced, and I think that one or two had more Democrats among the senior judges. Looking at district judges might be even more depressing.)
 

Mourad:

You should really have stuck with your first correct instinct and should not have scurried for cover when put on notice that you accidentally shared a non-PC American conservative viewpoint.

As for the rest of your diatribe, you may have noticed that the United States rejected the British common law "constitution" in favor of a written one with specified provisions including one that requires a super majority of the People's representatives to amend the document. The fact that you personally prefer the British system matters less than a damn under US law.
 

Mark Field asked:-

"In all the US equivalents, efforts were made to enlist the judiciary as well (with generally minimal success). I know there were such efforts in Britain regarding slavery. Were there none with the other issues?"

Very much so. For the early examples, these are pre-internet so I think it is best to see how Judges get involved in relation to current issues. Judges in the UK rightly keep a very low political profile. Like The Queen whose justice they administer, they are supposed to be " above politics". Therefore, for example, upon appointment they are expected to resign from any political clubs or too activist campaigning groups to which they may have formerly belonged. Sometimes accidents happen. For example in the Pinochet trial, Lord Hoffman sat on panel of Law Lords while having been a council member (or something more than a mere member) of Amnesty International which had campaigned to bring Pinochet to trial. Subsequently the Law Lords held Lord Hoffman should have recused himself and the case had to be re-heard.

Judges have in the past been actively involved in law reform and they still are. Not least when they are appointed to chair public enquiries. For a recent example here is the Times Obituary for Lord Scarman. You will see a reference to the 1981 Scarman Report. Lord Scarman did not mince his words. He called for radical reform with a new emphasis on community policing and said more people from ethnic minorities should be recruited to the force. He also advised the government to end racial disadvantage and tackle the disproportionately high level of unemployment among young black men - as high as 50% in Brixton. The government was forced to act and much legislation was strongly influenced by his Report. But not enough. Read Chapter 6 of the 1999 Lord McPherson Lawrence Enquiry - Racism. Again, this Report has had a dramatic effect in favour of reform.

To give a current example, murder is the only crime where, absent a special defence of "diminished responsibility", there is a mandatory life sentence in all cases. For all other crimes, judges have sentencing discretion. This produces obvious injustices since not all murders are equally heinous. The judges are actively advocating reform and the legislature is moving. There is to be a review of the Homicide law.

There is a great deal of consultation which goes on between the legislature, the executive and the judiciary through various mechanisms both formal and informal and, of course, very senior judges, have long been members of the House of Lords where they sit on the apolitical "Cross Benches" and from which, like the bishops and the other prominent members of the faith communities, they speak in debates. With the coming separation of the House of Lords' judicial functions, that will change soon. More Judges are giving evidence to select committees. Judges can, of course, also speak before learned societies and the like.

Likewise, acting more strictly judicially, Judges can hold the executive to account. For example, we now have a type of sentence which is called "imprisonment for public protection". It is an extended sentence where there are certain aggravating factors. The total sentence is composed of a period to reflect the need for retribution and deterrence (which the convicted person must serve before becoming eligble to apply for parole), but where there is an EPP finding, the onus is on the inmate to demonstrate reform by having successfully undertaken various rehabilitation courses before becoming entitled to apply for parole. On judicial review, the Courts have held that since the legislature has chosen to implement such a mechanism, then the onus on the executive is to put the Prison Service in funds to provide the courses - and if it fails to do so, then an EPP sentence becomes unlawful.

Nancy Jane Moore made reference to the judicial appointments process. Our judicial appointments process is now in the hands of the Judicial Appointments Commission. Vacancies are advertised and appointment recommendations made by the trusted British expedient of a committee of "the great and the good" - Profiles of some JAC Commissioners.

There is of course no perfect appointments system but would there be any problem with a US president setting up a similar advisory council on federal judicial appointments?

Bart de Palma writes: "...the United States rejected the British common law "constitution" in favor of a written one with specified provisions including one that requires a super majority of the People's representatives to amend the document."

Stuff and nonsense. The Founding Fathers were by and large reluctant revolutionaries, all of them British subjects who declared their allegiance at an end for breach by the Monarch of the social contract with his American subjects. Many of them were British lawyers, who very largely worked from the constitutional settlement and legal assumptions with which they were very familiar: Why else does the US Bill of Rights adopt the scheme and sometimes the precise wording of our earlier Bill of Rights ? Why does habeas corpus find a place in the US constitutional settlement ? What is habeas corpus if not a common law concept?

The US Constitution is not a rejection of its historical background but an evolution from it.

If Bart (to eschew for once any more appropriate appellation), does not like the constitutional role of the US judiciary as things stand, he is perfectly free to promote any constitutional amendment he sees fit. As a [small d] democract and liberal, I trust the good sense of the American people.

I suspect Bart well knows that his views would not command the requisite majority and so in frustration he sits at his PC and spews out his bile to this involuntary audience perhaps in the hope of tempting others to give up their visits in disgust.

I think Liberals are made of sterner stuff and will resist the temptation.
 

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