Saturday, October 22, 2005

Are Judges from BOTH parties "working vigorously to change the role of the judge?"

This is a reference to the description of this blog. And the answer is 'YES.' Judges from both parties, judges from all over the map, are working--some deliberately and consciously, and others ignorantly--to change the role of the judge. That is, every judge who fails to understand the bounds of his role will constantly overstep those bounds. If you can't see the curb, you'll step out into the street. Few will disagree with me when I say that law schools--like so much of academia--are generally quite liberal. That's axiomatic. And how does that affect a judge? Simply in that he will be exposed to very little judicial philosophy or anything else remotely theoretical after he graduates. Discussions of the role of judge happen in two places, law schools and courtrooms (by the losing/appealing party). But a meaningful inquiry about these boundaries is rare. Liberal professors do not believe that the judge is limited to applying the law and interpreting texts. They flatly disagree. And lawyers, both liberal and conservative, are not paid to consider such things. In fact, why should they? Often the only way they can win for their clients is by asking a judge to ignore the law. I hear it all the time: "Your honor, I'm just asking you to consider, in the court's discretion...." In other words, gimme a break. Such appeals often work. So lawyers aren't interested in boundaries. They are interested in practical tools to win cases.

(Of course, you could argue that these boundaries within which a judge operates are winning tools--if you're on the other side. But it's not that simple. Imagine the argument: "Your honor, with all due respect, your honor--now I don't mean to offend--but what the plaintiff argues is beyond the scope of this Court. The only questions facing the Court today are the application of the statute. The Court simply does not have discretion...." You can see how hard it is to win such a point--to tell a judge to watch himself before he gets too big for his britches. But yes, it can be done.)

But back to the law schools. They talk about judicial philosophy and jurisprudence, but not as much as you might think. And they do not talk about the traditional role of a judge. Their graduates won't hear much about it in their practice, and it is the rare lawclerk or staff attorney that will remind him when he is overstepping his bounds. And then there are the obvious questions about the qualifications of some judges. In many local courts, judges are elected. Elections attract different candidates--politicians, police chiefs with law degrees, etc. Some of these are not likely to know or question the scope of their new duties. So when they put on the robes, even the conservatives often do what liberals have been doing for a generation--they push away the rules now and then, and ask themselves what the rule ought to be.

And that is wrong.

Robert Bork puts it this way:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him, his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government.... To give in to temptation, this one time, solves and urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Robert Bork, The Tempting of America: the Political Seduction of the Law, 1990, p. 1.

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