Senate Democrats have warned the president to avoid sending them “extremist” judges. While there is considerable room for debate as to how best to identify truly “extremist” candidates, a starting point might be to focus on those nominees who are most inclined to disregard the admonition of Chief Justice John Marshall in Marbury v. Madison, which established judicial review, that the role of the judge is to say what the law is rather than what it ought to be. For, if there is any aspect that is central to the proper exercise of the judicial power, it is respect for the separation of powers and an appreciation of the distinction between the judicial and legislative roles in a tripartite government.
While there are few judges who ever expressly assert their disregard for the words of the lawmaker (whether that lawmaker be Congress, a state legislature, a county commission, or simply the parties to a contract), such disregard is often effectively achieved through a variety of alternative, less noticeable means. Therefore, to assist the Senate in assessing “extremist” tendencies in judicial nominees, I offer for consideration several of the more prominent rhetorical devices that often cloak judicial fiats. Senators may wish to examine the prior opinions of nominees in order to assess their propensity for employing devices like the following, with the purpose of replacing the policy choices of the lawmaker with those of the judge.
Spirit of the Law: Where the actual language of the law is incompatible with the policy preferences of a judge, it is not uncommon for a judge to claim that the “spirit of the law” nonetheless compels the preferred result. A judge may invoke such a “spirit” as a basis for decision-making as if somehow, via this necromancy, that which is not within the law may be conjured into it. Opinions relying upon a “spirit,” nowhere incorporated in the actual language of the law, should be scrutinized carefully.
Balancing: The process of “balancing” rights and interests is predominantly a legislative, not a judicial, function. When, in the course of interpreting the law, a judge purports to engage in a “balancing” determination, more often than not he has misconstrued one of the allegedly-competing rights or interests. Concluding that one interest or right is entitled to a 30-percent weight, instead of a 70-percent weight in the “balancing” process not only constitutes an essentially standard-less, legislative decision, but it also implicitly concedes that neither of the rights or interests established by the lawmaker will be accorded full respect.
Public Policy: A judge will often resort to “public policy” as a basis for disregarding the words of the law. Unless such policy is grounded in the actual words of some law, this is simply another way for a judge to replace the determination of the lawmaker with his own determination of what the law ought to be. The most reliable basis for ascertaining “public policy” is for a judge not to examine his own sense of conscience, but to examine the principle repository of such policies in a democratic society, the actual enactments of representative, public bodies.
Equity: A judge may sometimes speak of “equity” as a basis for rendering a decision incompatible with the language of the law. While there is a longstanding body of Anglo-American law that is grounded in the concept of equity, it is nonetheless a body of law. “Equity” should not be invoked simply to enable a judge to override the words of the law and achieve a preferred result. Equity understood broadly as the power generally to do “good” things, and to avoid the consequences of the law when the results are not as the judge prefers, is an equity in which the rule of law is subordinated to the rule of individual lawyers in robes.
Ambiguity: While the law is sometimes truly ambiguous, it is not as ambiguous as some judges often find it to be so. The consequences of finding a law to be ambiguous, rather than striving through the use of time-honored interpretative tools and techniques to determine the better meaning of a law, is that some judges end up believing themselves to be empowered to give their own meaning to the law. The conclusion that a law is “ambiguous” should be a final resort, not one undertaken with haste so that a judge can impart his own meaning to that law.
Broad Construction: When a judge announces that a law is to be construed “broadly” or “liberally” (or “narrowly” or “conservatively”), his analysis should be scrutinized closely. For it is the role of the judge generally to interpret the words of the law “reasonably.” When a judge purports to interpret the law by some alternative standard, it is reasonable to inquire why judicial thumbs are being placed on one side or the other of the scales of justice.
Legislative History: While there is a legitimate, albeit limited, role for reliance upon “legislative history” in the interpretation of statutes, excessive reliance upon legislative history may simply be a means by which the words of the lawmaker are replaced or modified by a “history” that was never enacted into law. This is an especially questionable endeavor when it is recognized that there are usually multiple legislative histories that can be picked from by a judge intent on reaching a particular result. Is the “legislative history” of a statute derived from the testimony of a legislative witness, from a committee report, from the statement of a single legislator on the floor, or from a colloquy among two or three legislators?
While there can be no purely mechanical process for evaluating judicial nominees–any more than there can be a mechanical process for judging–an intelligent and thoughtful assessment of judicial opinions invoking these rhetorical devices is a far better starting point in assessing genuinely “extremist” nominees than, for example, calculating judicial “batting averages” or identifying “politically-incorrect” decisions on matters of high public profile. (“Isn’t it true, Judge Bork, that your opinions favored environmental defendants 69.3 percent of the time?”) If there can be no consensus that a judge who fails to give faithful meaning to the words of the lawmaker is acting beyond his authority, then there can be no consensus as to who is acting as an “extremist.”
–Stephen Markman is a justice on the Michigan supreme court. He served as assistant attorney general under Ronald Reagan, during which time he was responsible for the federal judicial selection process.