After a rare conciliatory move of taking four of his most controversial judicial nominees off the table, President Bush re-nominated 32 other judges that the previous Senate did not confirm. The White House statement read: " The President remains focused on appointing highly qualified nominees who clearly understand that the role of a judge is to interpret the law, not to legislate from the bench."
There is never one "right answer" when interpreting the law, and it's dangerous for the right to continue fomenting the myth that any judge who doesn't agree with their position is "activist" or "legislating from the bench."
Throughout the history of the U.S. Constitution, federal judges have frequently overstepped the bounds of interpreting law versus making the law. It can sometimes be a fine line and the willingness to cross it depends entirely on a judge's background and experiences. There is no such thing as purely objective legal reasoning. During three long years of law school, our reading consists entirely and exclusively of reading historical judicial opinions. I don't recall reading one opinion that read as purely objective.
The truth is there has been plenty of "activism" on both sides. One of the most activist periods in US Supreme Court history is the court's invention of the substantive due process doctrine at the turn of the 20th Century. The court, comprised of lawyers from corporate firms that represented big business, "found" avenues in the Constitution to protect property and corporate interests over the rights of states to legislate wage and hour laws for the safety and welfare of their workers. These doctrines were in no way intended by the original framers to protect corporate interests. Justice Oliver Wendell Holmes issued many of his famous and fiery dissents in response to these decisions.
In many areas, the law is not clear and judges inevitably exercise discretion - this is what interpreting the law means. Chicago Law Professor Cass Sunstein provides empirical proof that ideology plays a role, on all sides of the spectrum. In his new book "Are judges political? An Empirical Analysis of the Federal Judiciary" (2006: Brookings Institution Press), Sunstein and his co-authors tracked decisions by the federal judiciary according to the political party of their appointing president. Acknowledging that political party has some limitations as a proxy, the authors found ideology does matter. It made the largest difference in affirmative action cases, where judges appointed by conservative presidents voted for plaintiffs 47% of the time while judges appointed by democrats voted with the plaintiff 75% of the time. Other top ideology issues were environmental protection and sex discrimination.
We saw ideology at play in two recent high profile Supreme Court split decisions. The Guantanamo
The good news from the Sunstein study is that ideology doesn't dominate a judge's decisions 100% of the time, and there were several areas of the law where ideology showed no effect.
The takeaway point is: opposing ideologies appear to keep judges in check. Diversity of ideologies provides a check on extremism, as the authors found that individual judges sitting on panels comprised only of one appointing party voted more extreme than when they sat with judges appointed by the opposing party. This moderating effect lead Sunstein to conclude that because ideology matters, "reasonable diversity on the federal judiciary is desirable."
Comments