Thursday, February 22, 2007

The real issue in the Supreme Court race

I have been very critical of bloggers like Jay Bullock and Cory Liebman for misunderstanding certain issues in the state Supreme Court race, so I should acknowledge it when one of them says something that makes some sense. In a recent post, Jay suggested that being on the Supreme Court is very different than being a trial judge or a prosecutor and he is right. Jay wrote:

Being "tough on crime" is really not a bad qualification for a prosecutor or a municipal judge (notice, no one ever runs for DA with a "soft on crime" platform). But on the state's Supreme Court, you want someone who can provide a thoughtful approach to substantial matters across a wide spectrum of judicial theory. "Tough on crime" tells us nothing about a judge's ability to weigh matters of constitutional consequence; a strict lock-em-up, throw-away-the-key mentality is not necessarily a good fit on the high court."

There is really nothing there that I disagree with. I recall a few years back, a candidate for the Court of Appeals ran radio spots with a cell door banging shut and a voice over saying that candidate X knows where criminals belong. True, but largely irrelevant.

I don't blame the candidates for doing it because it is what works and may, at some level, express something about their approach to the relationship between the judiciary and law enforcement. But it is, at best, a small measure of a candidate's worth.

(However, if Judge Ziegler is not supposed to run on being a "tough" judge then I suppose her opponents ought not make an issue of any particular sentences she has handed down. Although they may review the legality of a sentence, justices don't sentence people or normally pass upon the exercise of sentencing discretion.)

Still Jay's idea of "a thoughtful approach to substantial matters across a wide spectrum of judicial theory" requires a great deal of unpacking. It is not simply a matter of whether someone is an experienced and smart lawyer. There are justices on the court who I believe are very smart and accomplished lawyers who, in my view, routinely get the law wrong.

The reason is not that they are liberal and that I am conservative, but that they have a different view than I do of what a judge is supposed to do. No judge or judicial candidate will say that they wish to "legislate from the bench" or call themselves "a judicial activist."

But many judges believe that they may "find" "fundamental" rights that are not mentioned in, or fairly inferable from, the constitutional text. They believe that it is their prerogative to act to remedy a social problem if, in their view, the legislature has not. They think that they ought to discern "contemporary sentiment" in interpreting the law, even if that means interpreting it in a way that it has never been interpreted before.

Now, there are smart and honest lawyers - good people - who believe that this is exactly what judges ought to do. I believe that it is fundamentally anti-democratic and is just as likely to frustrate liberal policies supported by the majority as it is likely to frustrate conservative ones. (Over our history, it has done both.)

But however you come down on that issue, this is the issue in the state Supreme Court race. It is not which candidate is qualified or which is a person of integrity. Both Clifford and Ziegler are qualified and both strike me as decent and honest women. But how do they view the role of the judiciary?

Getting at that is difficult. Paul Soglin recently put up two posts on the race that get it completely wrong. I'll turn to those later but I have a breakfast meeting.

Note: In the interest of full disclosure, I have been engaged by the Federalist Society to write a white paper on judicial restraint and activism on the Wisconsin Supreme Court and, along with certain other lawyers, to be available for comment on the issue of judicial restraint. This is part of the Society's State Courts project designed to educate the public on the role of the judiciary - something that is easiest to do when there is a campaign that gets people interested in the courts. The views that I express, whether in the white paper, here or elsewhere, are my own and not that of the Federalist Society . While I certainly will vote for, and contribute to, the candidate of my choosing, I am not acting on behalf of, nor am I apart of any campaign for Supreme Court and I do not intend to endorse either candidate.


PaulNoonan said...

I'm not a big fan of the dichotomy of "restraint" and "activism." I think that the now conventional interpretive strategy of "assuming Constitutionality" has taken the focus off of the true purpose of the court, which is (or should be) in determining whether the government had the power to make a certain law. This dichotomy of individual rights vs. enumerated governmental rights would work much more efficiently and would serve to maintain an independent judiciary.

(I should here mention that I take the view that government is not the grantor of rights, but that rights are retained by the people, and therefore it is not necessary to "find rights" for people in the Constitution for those rights to exist. I hold this view because it is explicitly stated in the US Constitution. The Wisconsin Constitution I'm not sure about.)

Simply asserting that the courts should be judicious in intervening without regard to whether the issue deals with negative or positive rights is no philosophy at all, as far as I am concerned.

Anonymous said...

Why don't you do a piece on why we address Judges and Justices as "your honor"?