For those interested in the coming debate over judicial selection, Judge Diane Sykes gave a thoughtful speech on the subject at yesterday's meeting of the Eastern District of Wisconsin Bar Association. I didn't hear the speech because of a prior commitment, but have read a copy and I believe it will ultimately posted to the Journal Sentinel's Proof and Hearsay website.
Judge Sykes is troubled, as was I, by the tone of the last election. She invites debate over judicial selection without expressly endorsing any particular method. I think that the key challenge of that debate is summed up in the following passage:
Elections operate as an external constraint on state judges’ job performance. There is no question that this weakens judicial independence—that’s the whole point. Independence and accountability are important, but conflicting, values. In choosing an elected judiciary, Wisconsin has accepted a reduction in judicial independence in order to achieve a greater level of judicial accountability.
What makes acountability so salient is differences in opinion about the role of the judiciary. Judge Sykes observed:
Broadly speaking, it is a struggle between interpretivist and noninterpretivist judges. Labels are tricky, but to generalize, the former try to decide cases by reference to neutral principles and sources of interpretation that operate to limit judicial discretion: the text, structure, and history of the constitution and laws, precedent, and traditional rules of legal interpretation. This approach tends to be more restrained in the use of judicial power and therefore more sensitive to separation of powers and the prerogatives of the other branches of government. On the other side of the philosophical divide are those judges who subscribe
to a more expansive view of the judicial role and see the law as a malleable instrument through which judges should try to achieve the “right” or “best” or “just” result. These judges are more inclined to look behind the language and structure of the law, more willing to modify traditional interpretive methods, and less inclined to defer to the other branches of government. This struggle has obvious consequences for judicial politics.
I missed Judge Sykes' speech because I attended an address by former Attorney General Ed Meese at Marquette University Law School. General Meese focused on the politics and tone of Senate confirmation of federal judges, noting the way in which battles over the nominations of Bob Bork, Clarence Thomas, Sam Alito and even John Roberts departed from historical practice. They became battles over ideology because, since the Warren Court, ideology in judging matters.
Judge Sykes notes that "[i]t is not impossible to elevate the level of discourse and still articulate the philosophical differences that may exist between judicial candidates so that the public understands what’s at stake." "Drawing these philosophical contrasts," she says, "does not require playing on voters’ fears or hitting them between the eyes with images of bloody knives, dead bodies, empty swings, and mug shots of child molesters."
I would add that it can be done without referring to judicial nominees as racially insensitive or indifferent to the needs of ordinary people because they do not believe that it is their prerogative to shape policy in a way preferred by their critics.
Nor is the debate served by denying that these differences exist.