The Federal Judiciary

The oldest Justice currently serving on the United States Supreme Court is 88.   Six of the nine Justices are age 69 or older.   The next President of the United States, in all likelihood, will have the opportunity to appoint at least two and perhaps more Justices to the Supreme Court.   The next President will also have the opportunity to fill numerous vacancies—probably 200 or more—in the various federal courts below the Supreme Court.   All of these appointments are for life, which means the next President will be able to influence the Supreme Court and the lower federal courts for decades to come. 

There are two dramatically different philosophies regarding the role of the judiciary.    Those who subscribe to the “strict constructionist” philosophy believe the Constitution and the laws adopted by legislative bodies must be interpreted as they were written—not as judges think they should have been written.   Judges who adopt this philosophy generally believe they are required to interpret the law in a neutral manner without regard to their personal feelings and without regard to the interests that may be before them.    Under this philosophy, a judge’s personal feelings about a specific issue or cause are irrelevant.    

A second philosophy is based on the theory that the Constitution is a “living document.”  Under this philosophy, the Constitution should be evaluated and interpreted in light of changes in the contemporary society and culture and after taking into consideration other factors that a judge may deem appropriate, including even foreign law and precedent.   Judges who follow this more flexible philosophy have no hesitation to find individual rights—or restrictions on individual rights—that are not expressly written into the Constitution or other laws.   Judges who believe the Constitution is a “living document” also tend to have a much broader view of their right to apply their own views when interpreting legislation adopted by Congress or other legislative bodies. 

There are some judges who do not have a strong judicial philosophy.   They sometimes follow the “strict constructionist” philosophy, and they sometimes follow the “living document” philosophy.    In other words, they do not have a strong conviction about the role of the judiciary, and they make up the rules as they go along. 

As a general rule, conservatives tend to prefer judges who follow the “strict constructionist” philosophy, and liberals generally prefer judges who view the Constitution as a “living document”.   Although normally associated with liberal judges, the “living document” philosophy could also be used by conservative judges who want to base their decisions on their personal preferences.       

Supreme Court Justice Clarence Thomas recently delivered the Wriston Lecture to the Manhattan Institute.    As part of his lecture, Justice Thomas, who is a strong advocate of the strict constructionist philosophy, said, “No matter how ingenious, imaginative or artfully put, unless interpretative methodologies are tied to the original intent of the framers, they have no more basis in the Constitution than the latest football scores.  To be sure, even the most conscientious effort to adhere to the original intent of the framers of our Constitution is flawed, as all methodologies and human institutions are; but at least originalism has the advantage of being legitimate and, I might add, impartial.” 

John McCain has promised that, if elected President, he will appoint judges who will interpret the law rather than legislate from the bench.   McCain has referred to Chief Justice John Roberts and Justice Samuel Alito, the two most recent appointments to the Supreme Court, as examples of the type of judge he would nominate to serve on the Supreme Court or on the lower federal courts.   As a member of the U.S. Senate, Barak Obama voted against both Chief Justice Roberts and Justice Alito.

When asked what type of judge he would appoint, Barak Obama said he wanted “a judge who is sympathetic enough to those who are on the outside, those who are vulnerable, those who are powerless, those who can’t have access to political power and as a consequence can’t protect themselves from being… dealt with sometimes unfairly…”   Obama has criticized Chief Justice Roberts for saying “he saw himself just as an umpire”.

In my view, McCain has the right approach and Obama has the wrong approach.  Obama’s statements about the type of judge he would nominate to the federal bench sound good because they appeal to your emotions.  Everyone wants to be empathic to the poor and powerless.   The role of a judge, however, is to interpret the law—not to make the law.  A judge should be impartial—not sympathetic to one side or the other.   A judge should not base his or her rulings on either a conservative or a liberal ideology but instead should seek to achieve a non-partisan interpretation of the law as written in the Constitution or as adopted by a legislative body.   Justice Roberts was right when he said a judge should be an unbiased “umpire.”   

Obama has as much as admitted that he would nominate judges who would bring their personal feelings to the courtroom and who would implement their own policy preferences through judicial fiat.   This is not only wrong, but it is also dangerous.    Obama’s view of the role of judges undermines our system of government by permitting and encouraging judges to make important policy decisions that should be left to elected officials.   In my opinion, Obama’s view confuses the roles of the legislative and judicial branches of government and, if followed, will lead to public cynicism rather than respect for the rule of law.