Presidential Campaign Reveals Different Philosophies of Judging

Every election cycle, we are reminded of the ongoing battle to control the judiciary. From the conservative judges who sought to thwart the New Deal to the liberal activism of the Warren court to the present court, it is apparent that the identity of the persons appointed to the federal courts matters greatly. Because federal judges are appointed for life, an appointment made today could influence cases decided thirty years from now.

While the political aspect of controlling the judiciary is seductive, the candidates are challenged to articulate a neutral philosophy for judicial selection. To some extent this is a diversion. The average voter cares more about whether his side prevails in appointing his kind of judges. However, the campaign poses an opportunity to think about what principles should be important in judicial selection.

Sen. John McCain

John McCain advocates a traditional Republican philosophy for selecting judges. In a recent speech, he stated:

“I will look for accomplished men and women with a proven record of excellence in the law, and a proven commitment to judicial restraint. I will look for people in the cast of John Roberts and Samuel Alito, and my friend the late William Rehnquist—jurists of the highest caliber who know their own minds, and know the law, and know the difference. My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power. They will be men and women of experience and wisdom, and the humility that comes with both. They will do their work with impartiality, honor, and humanity, with an alert conscience, immune to flattery and fashionable theory, and faithful in all things to the Constitution of the United States.”

Sen. McCain’s comments are similar to those made by Chief Justice Roberts in his confirmation hearing when he said:

"Justices and judges are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them. Nobody ever went to a ballgame to see the umpire."

Of course, the consequence of a philosophy of judicial restraint is that the court will be less likely to overturn actions of the executive or legislative branches and less likely to find new rights in statutes and the Constitution. In Sen. McCain’s philosophy of judging, judges will not act as a counterbalance to the other branches of government unless required by the Constitution. However, this will not act uniformly against the individual. In his speech, Sen. McCain criticized a Supreme Court justice who opposed the death penalty based upon his personal experience and a Supreme Court opinion which allowed the taking of private property for a business development.

However, Sen. McCain has also shown that he is not an ideologue when it comes to judicial appointments. He voted to confirm President Clinton’s nominations of Ruth Bader Ginsberg and Stephen Breyer even though he disagreed with their philosophy. He also was part of the Gang of 14 which reached a compromise to avoid filibusters of judicial nominees absent “extraordinary circumstances.”

Sen. Barack Obama

Barack Obama, who is a lawyer and who has lectured on constitutional law, has made numerous statements about judicial appointments. In speaking against the nomination of Janice Rogers Brown to the D.C. Court of Appeals, Sen. Obama stated:

“The test of a qualified judicial nominee is also not whether that person has their own political views. Every jurist surely does. The test is whether he or she can effectively subordinate their views in order to decide each case on the facts and the merits alone. That is what keeps our judiciary independent in America. That is what our Founders intended.

“Unfortunately, as has been stated repeatedly on this floor, in almost every legal decision that she has made and every political speech that she has given, Justice Brown has shown she is not simply a judge with very strong political views, she is a political activist who happens to be a judge.”

Those words could easily have been spoken by any advocate of judicial restraint. However, when John Roberts was nominated to be Chief Justice of the Supreme Court, Sen. Obama made the following statement:

“There is absolutely no doubt in my mind Judge Roberts is qualified to sit on the highest court in the land. Moreover, he seems to have the comportment and the temperament that makes for a good judge. He is humble, he is personally decent, and he appears to be respectful of different points of view. It is absolutely clear to me that Judge Roberts truly loves the law. He couldn't have achieved his excellent record as an advocate before the Supreme Court without that passion for the law, and it became apparent to me in our conversation that he does, in fact, deeply respect the basic precepts that go into deciding 95 percent of the cases that come before the Federal court -- adherence to precedence, a certain modesty in reading statutes and constitutional text, a respect for procedural regularity, and an impartiality in presiding over the adversarial system. All of these characteristics make me want to vote for Judge Roberts.

“The problem I face -- a problem that has been voiced by some of my other colleagues, both those who are voting for Mr. Roberts and those who are voting against Mr. Roberts -- is that while adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases that come before a court, so that both a Scalia and a Ginsburg will arrive at the same place most of the time on those 95 percent of the cases -- what matters on the Supreme Court is those 5 percent of cases that are truly difficult. In those cases, adherence to precedent and rules of construction and interpretation will only get you through the 25th mile of the marathon. That last mile can only be determined on the basis of one's deepest values, one's core concerns, one's broader perspectives on how the world works, and the depth and breadth of one's empathy.

“In those 5 percent of hard cases, the constitutional text will not be directly on point. The language of the statute will not be perfectly clear. Legal process alone will not lead you to a rule of decision. In those circumstances, your decisions about whether affirmative action is an appropriate response to the history of discrimination in this country or whether a general right of privacy encompasses a more specific right of women to control their reproductive decisions or whether the commerce clause empowers Congress to speak on those issues of broad national concern that may be only tangentially related to what is easily defined as interstate commerce, whether a person who is disabled has the right to be accommodated so they can work alongside those who are nondisabled -- in those difficult cases, the critical ingredient is supplied by what is in the judge's heart.”

Thus, according to Sen. Obama, intelligence, humility and a scrupulous desire to follow the law are not enough to make a good judge. In one out of twenty cases, the judge must be willing to follow his heart.

Sen. Obama has made similar remarks as a candidate for president. In a speech he stated:

“We need somebody who’s got the heart, the empathy, to recognize what it’s like to be a young teenage mom. The empathy to understand what it’s like to be poor, or African-American, or gay, or disabled, or old. And that’s the criteria by which I’m going to be selecting my judges.”

In a debate, he stated:

“Part of the role of the courts is that it is going to protect people who may be vulnerable in the political process, the outsider, the minority, those who are vulnerable, those who don’t have a lot of clout.”

Sen. Obama’s remarks pose an interesting contrast. On the one hand, he opposes political activists who happen to be judges. On the other hand, he wants judges to show empathy, to follow their heart and to protect people who are vulnerable in the political process.

Conclusion

It can be argued that Republicans favor judicial restraint unless it interferes with the power of the executive branch or big business. However, the interesting thing here is that Sen. McCain is consistent in advocating judicial restraint (even if he might not want to see it used in certain cases). Sen. Obama, on the other hand, opposes conservative judicial activism, but favors judges who are influenced by their empathy and their heart to support the downtrodden.

One definition of judicial courage is a judge who follows the law even when it conflicts with his empathy and his heart. Several years ago, I represented the defendant in a fraud case in bankruptcy court. My client was not very sympathetic. He had allegedly misappropriated funds form a business partner and defaulted upon a settlement agreement resulting from those claims. The issue at trial was whether the defendant had intended to perform upon the settlement agreement at the time that it was executed. The judge pondered the case and then called the parties in for his ruling. He stated that ruling for the defendant was one of the most difficult decisions that he had made as a judge, but that he couldn’t find sufficient evidence of fraud. In that case, the judge went against his heart to follow the law.

As a practicing attorney, I would hope to appear before judges who are suspicious of their own sympathies and empathy and who are willing to follow the law regardless of where it leads. I may well lose, but at least I would know that I lost to the law rather than the judge’s personal leanings.