Legislators As Judges?
February 28, 2009, 5:21 pm
Filed under: Ian | Tags:

Over at the Volokh Conspiracy, Orin claims that appointing legislators to the bench will lead to more judges who are likely to “legislate from the bench,” by which I assume he means that they will be more inclined to second-guess a legislature’s decision to enact, or not to enact, a particular law or policy.  Orin doesn’t really explain why he thinks this, though, and I’m inclined to think that the opposite is true.

First of all, legislators who were actually involved in enacting a particular law are likely to have a certain kind of pride-in-authorship that makes it unlikely that they would later want to limit that law as a judge or justice.  I’m reminded of a speech future Vice-President Biden gave a few years ago where he grew visably angry as he discussed a Supreme Court decision striking down part of the Violence Against Women Act (the link goes to video of the speech, Biden’s discussion of VAWA starts around 35:22):

I grew up in a family where the worst form of unmanly cowardace that one could engage in was to strike a woman.  It was the lowest act of all.  And as a result, I wrote a law called the Violence Against Women Act—and I know people say “I wrote”—I wrote that law. . . .  I never put so much energy into any single piece of legislation in my 32 years in the United States Senate.

I though the single most important aspect of it was to empower women to take control of their own lives, to be able to go into federal court and sue their abuser for their watch, their car, their business, and their worldly goods for the abuse inflicted upon them—whether or not the state or federal prosecutor wished to proceed criminally.  But in 2000 the Supreme Court struck down this right, despite 9 hearings, over 100 witnesses, despite the support of 38 state attorneys general, despite the overwhelming evidence of gender discrimination in the local and state criminal justice systems. . . .

I term this judicial activism.

Many former legislators don’t play the very active role that then-Senator Biden played in enacting VAWA, but they are still likely to look back fondly on their time in the legislative branch and think twice before undoing their own work and that of their former colleagues.

In a similar vein, former legislators will have an understanding of just how difficult it can be to craft a statute, and how frustrating it can be when the Court misreads statutory language—whether artfully or inartfully drafted— to undermine Congressional intent.  I written a lot in the past about decisions that interpreted a law which Congress intended to protect employee benefits to give health insurance companies total lawsuit immunity when they injure or kill a patient, or another decision, which invoked a law Congress intended to keep dangerous medical devices off the market, in order to give almost total immunity to the makers of those devices.  From within the walls of the judicial monastery, I can see how decisions like these made sense, but a former legislator who has agonized over whether they have chosen exactly the right statutory language to accomplish a particular goal is likely to think twice before they read a small portion of an act to undermine that law’s overarching purpose.

As a movement progressive, I believe there is a third good reason to appoint a current or former elected official to the Supreme Court.  As repulsive as his jurisprudence may be, Justice Scalia has been a very effective evangelist for his form of conservative decision-making.  Justice Scalia travels around the country giving speeches, he speaks often at events sponsored by movement conservatives, and he published a well-read book which contains a concise and easy-to-understand sales pitch for conservative methods of interpretation.  Progressives simply do not have a figure of Justice Scalia’s stature who is equally effective in selling our vision of the Constitution and its laws to the masses.

An elected official, almost by definition, possesses the ability to sell ideas to lay voters, so I can see the appeal of appointing someone like Governor Deval Patrick—who not only is very effective on the stump but who also had a very distinguished legal career before running for office—to the Supreme Court.  This is not to say that legislators or governors are the only people who fit this bill—a media-savvy intellectual like Erwin Chemerinsky or Pam Karlan would also be an excellent choice—but a lawyer whose background reflects both an ability to sway their colleagues in the conference room and an ability to sell progressive judicial values to the public would be a long-needed addition to the Supreme Court.


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