Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, July 4, 1993 TAG: 9309010300
SECTION: EDITORIAL PAGE: F3 EDITION: METRO
SOURCE: JACK E. CALL
DATELINE: LENGTH: Long
Typically a discussion of this issue revolves around such matters as whether the judicial and political philosophy of a nominee should be considered, whether certain distinct groups within our society should be represented on the court, and what is meant by legal competence in a nominee.
A couple of recent incidents involving federal judges remind us of a very important trait in a Supreme Court nominee that is often overlooked - a willingness to look to the law first for guidance rather than to one's own policy preferences.
In the first of these incidents, two senior federal District Court judges in New York made public a practice that they had been following for some time. They have been refusing to preside over criminal prosecutions of federal drug offenses because they believe that the federal policy of relying upon law enforcement as the key tool in combating the drug problem is misguided. They also believe that the federal sentencing guidelines for drug offenses, which they must follow in sentencing convicted drug offenders, are too harsh.
In the second incident, a federal district court judge in Oregon imposed the death penalty in a case where he concluded that the law, as he understood it, called for the imposition of that penalty.
In order to understand fully the significance of the actions taken by these judges, we must recognize what is for some people a hard fact about the judicial process - judges are policy-makers. Most of us were not taught this in our civics classes in grade school and secondary school. We were taught that the executive and legislative branches make policy. Judges merely apply the law to individual cases.
The problem with this ideal image is obvious to anyone who has studied the legal process at all. What one quickly discovers is that frequently the application of the law to a particular set of circumstances is not clear at all. Words are inherently ambiguous. Regardless of how careful legislators are when they write statutes, or administrators are when they write regulations designed to give fuller meaning to the statutes, there will be some situations they did not anticipate.
The judge assigned to a case involving one of these situations must make a judgment about what the law means in these circumstances. The problem of ambiguity is even greater when the law to be applied derives from the Constitution. For example, the immense body of law dealing with police searches stems largely from judicial interpretation of the rather general Fourth Amendment right of the people ``to be free from unreasonable searches and seizures.''
When judges resolve ambiguities in the law, they make policy. Let's continue with the Fourth Amendment example. The rule that evidence seized by the police in violation of the Fourth Amendment may not be used to prove the guilt at trial of the person whose rights were violated in obtaining that evidence (the so-called exclusionary rule) was created by the Supreme Court in its interpretation of the Fourth Amendment.
This rule obviously creates policy. It reflects the idea that it is better not to prosecute some criminals because of the manner in which some of the evidence against them was obtained than to permit an environment in which the police will not be strongly encouraged to respect the rights of individuals. We may not all agree with that policy, but it is policy all the same.
This opportunity to create policy through the interpretation and application of ambiguous laws increases as one moves up the judicial ladder. At the trial-court level, it is common for laws to provide a clear, or at least relatively clear, answer to questions that arise in individual cases. But this is not true at the appellate-court levels.
Most lawyers do not want to waste their time and their clients' money litigating on appeal issues about which there is not much doubt. (Our society has a rather cynical view of lawyers, so many of you will simply have to trust me on this point.) If a lawyer is willing to argue an issue on appeal it is because she believes that there is a respectable argument that can be made on this issue that, if successful, will benefit her client.
The U.S. Supreme Court decides a very small number of cases each year - only around 150. Consequently, the issues that the Supreme Court will agree to decide nearly always involve very respectable arguments on both sides of the issues.
Given the respectability of the arguments on both sides of an issue before the Supreme Court, a justice could simply decide all these issues based solely on what he or she thinks results in good public policy. Indeed, many scholars who have studied the Supreme Court believe that many justices have behaved in just this manner.
Nevertheless, no matter how strong the policy views of an individual justice, she often may find that after she has studied the relevant case law, it seems to suggest a resolution contrary to what she considers good public policy. She recognizes that the argument that agrees with her own policy preferences is reasonable, but she still finds the other argument stronger.
In this kind of situation, the justice could simply decide the case the way she would like to see it come out, and there would be little that could be done about it. She enjoys life tenure on the court, and impeachment is next to impossible. No one need even know that she finds the contrary argument more compelling, because she could keep that fact to herself.
However, it seems clear to me that our government functions best in this situation if the justice follows what she considers to be the stronger argument. For while she is a policy-maker, the judicial role is not to actively seek to be a policy-maker. When a judge honestly thinks a policy outcome has already been dictated by the legislative or executive branches, in our system of government her obligation is to support that policy.
We want our judges to be removed sufficiently from public influence that they will have the courage to carry out the law even when the result may not be popular. This is one of the mechanisms by which we protect ourselves from the occasional excesses of public opinion.
But in doing this, we have also created the possibility that a judge (at least a federal judge) will become something of a loose cannon. This is one of the reasons why senators should be concerned about the judicial temperament of those nominees they are considering for confirmation.
In my opinion, the two senior judges in New York lack the proper temperment to be federal judges. Whether they are right about the wisdom of current federal drug policy is irrelevant. As judges, their role is to make policy only when they believe the other branches have not done so already. These judges recognize that existing policy is clear - they simply think it is unwise.
The judge in Oregon has demonstrated for us the proper judicial temperament. He views the death penalty as unwise public policy. However, he recognizes that it is the current policy and is willing to rule in accordance with it.
The report on President Clinton's nomination of Judge Ginsburg in the June 15 edition of the Roanoke Times & World-News indicated that she considers one of her guiding principles to be that ``a judge is bound to decide each case fairly in accord with the relevant facts and the applicable law even when the decision is not what the home crowd wants.''
If she applies that principle even when she is one of ``the home crowd,'' she possesses the proper judicial temperament. The Senate Judiciary Committee would be well-advised to review her opinions on the U.S. Court of Appeals to determine if she practices what she preaches. From all that I have read about Judge Ginsburg over the years, I suspect they will find that she does.
\ Jack E. Call is professor of criminal justice at Radford University.
by CNB