One of the things thwarting our democracy is the many bad judges in the system. What is a bad judge? One that exceeds his Constitutional role in his rulings. One that forgets that judges are not there to make new laws, but to fairly enforce the laws created by legislative bodies.
If you are a conservative (like I am) you may be tempted to label these bad judges as ‘liberal judges’. You may have a list of bad, liberal-slanted decisions made by bad judges.
If you are a liberal (like I used to be), you don’t think of liberal judges as a problem. But what if a conservative judge ignores the letter of the law to make a conservative-slanted decision? That’s a problem.
The problem isn’t one of liberal or conservative in the political sense. What matters is if judges are strictly following the letter of the law and of the Constitution, or if they issue rulings that are based more on the judge’s personal point-of-view and the things he personally admires. The first is the way it is supposed to be. The second corrupts the system— even if the judge’s personal point-of-view happens to be correct and laudable.
The bad-judge issue is often perceived as an issue only for conservatives. Those darn conservatives want only ‘strict constructionist’ judges on the Supreme Court, pundits say, implying ‘strict constructionist’ is just code for ‘conservative’.
I believe that because of the deep political divide our nation is currently coping with, we conservatives need to frame our concerns on this issue in a non-partisan way. After all, a judge that is personally liberal but is a good judge in the sense of respecting the legal limitations of his position will not make rulings we conservatives find shocking and radical and in violation of all we hold dear.
Judges, like true statesmen, should be above the low brawls of politics. But politics affects judges in that it is the political life forms who appoint most judges. Liberal/progressive politicians tend to want liberal/progressive judges. Conservative politicians have more divided desires. On the one hand they want conservative judges. On the other hand they want to please the large number of conservative voters who want judges who are ‘strict constructionists’ and don’t engage in ‘judicial activism’.
There is a news story today about a study that showed that lawyers and law professors tend to be ‘liberal’ and judges tend to be ‘conservative’. (Much depends on how they defined ‘conservative’ and ‘liberal’.) The most common conservative view is that judges tend to be liberal. If this study in fact has any validity, how do we reconcile its findings with our common perception?
First, we must always be willing to question our perception. Perhaps we conservatives only think that most judges are liberal because we notice liberal judges and their liberal rulings a lot more. Perhaps we are taking a conservative majority of judges for granted.
Second, we must consider the fact that conservatives may be getting less mileage out of our conservative judges, especially the ones who, on the bench, are Constitution-followers first and conservatives second. Liberal judges, remember, have a liberal community who are much less likely to think the US Constitution is valid for today’s world, and who therefore, as a group, perhaps tend to favor the judicial activist liberal judge over the Constitution-following liberal judge.
Third, we must remember that both ‘conservative’ and ‘liberal’ are not clearly defined and absolute terms. It’s not like the difference between iron and uranium. When someone uses terms like conservative or liberal we must ask what they meant by it. And also, there are a great many people who don’t fit so neatly into categories, like famed sci-fi author and LDS church member Orson Scott Card, who is a Democrat and seems to have traditionally Democrat views on some issues, but who also supports traditional marriage (between a man and a woman). While our conservative and liberal labels can be useful sometimes, we must always remember that they are ‘fuzzy’ terms.
Finally, there is the age factor. As people age, they tend to become more conservative— like me. In 1990, I was a Marxist pro-choice Neopagan, now I am a conservative prolife Catholic. The fellow who is a liberal lawyer in one year may be a conservative judge a couple of decades down the line.
I do not think there is much validity to the ideas I’ve heard from the liberal point of view that the ‘conservative judges’ finding, if it is true, means that conservatives are somehow underhandedly subverting the process. But in our divisive society, I can understand how this idea may seem accurate to people with strong liberal viewpoints.
Links to news articles about the judge study:
NY Times: Why Judges Tilt to the Right
Overlawyered: Harvard study: lawyers tilt left, judges don’t