On Judicial Philosophy and "Legislating from the Bench"

Here we are, almost a whole week after the announcement of Harriet Miers as the President's nominee to fill the seat of Sandra Day O'Connor on the Supreme Court. A lot of things have been said and feelings have been hurt, and I've seen folks at each other's throats that I never in a million years expected to see on the opposite side of any argument.

Putting aside for a moment the unhelpful accusations of elitism and true believer syndrome, I'd like to look for just a moment at why Bush's constant assurance that Miers will not legislate from the bench is accurate in distinguishing, say, a Scalia from a Stevens, but not a Stevens from a Kennedy.

Jurisprudence, like most disciplines, is not easily reduced to one-sentence platitudes - and like most other disciplines, it is also difficult to predict performance on the part of one who has never before performed.

Textualism, as a philosophy of jurisprudence, is not a simple flat rule that you can throw onto any case and arrive at an easy answer. It is quite simply not enough for someone to approach the judiciary with the commitment to not to outright make law from the bench. There are several reasons for this.

In the first place, there is a legitimate place for judge-made law, or common law. Certain statutes are deliberately ambiguous or vague as they are passed by the legislatures. Legislatures will often do this out of a desire of delegating to the courts the power to make the specific applications of law, and to flesh out the specifics of the general purpose they want accomplished on a case-by-case basis. Take, for instance, the Sherman Anti-Trust act, which in effect declared that the Legislature wanted the courts to keep monopolies and trusts from forming - and left the specifics entirely up to them. More recently, the IDEA and other statutes have done the same.

So, despite the confident assurance of Bush that Miers will not "legislate from the bench," what do we know about how Harriet Miers will rule on anti-trust cases, or cases involving education for those with disabilities - or in general about her view about how the common law ought to be properly formulated in such a situation? At this point, diddly squat. These may not be important issues to you, but by far the larger number of cases that the Supreme Court hears are not cases where there is a clearly defined statutory provision, where the answer is as simple as, "Do I apply this law, or invent my own?" The court of last resort is specifically intended to deal with the questions for which there is no easy answer, and the truth lies somewhere in the gaps of the existing common and statutory law.

Another reason that a commitment to refrain from "legislating from the bench" is an inadequate approach to jurisprudence is that some statutes are inherently vague - due in no small part to the limitations of language itself (among other factors). Consider, for instance, H.L.A. Hart's famous "No Vehicles May be Taken Into the Park," hypothetical - which posits that in a certain hypothetical park, someone had posted a sign, in accordance with a city ordinace, that said, "No Vehicles May be Taken Into the Park." This seems, prima facie, to be a remarkably easy statute to interpret, but its application becomes stickier when put to some interesting tests. For instance, does the law apply to:

• A war memorial which includes a military jeep placed on a pedestal
• A riding lawnmower
• A motorized wheelchair
• A nonmotorized wheelchair
• A bicycle
• A baby stroller
• A child's wagon

Clearly, a mere commitment to "not legislate from the bench," does not answer the broader question of how one approaches ambiguity in statutes in general, for there is where much judicial decision-making is found. It also ignores the broader questions about how one deals with legislative intent and purpose, or even if one deems those to be relevant - or even discernible.

For instance, many judges feel that they are doing right by the legislature when they consult legislative history - committee reports, floor speeches and the like - when the meaning, intent or purpose of a statute is unclear. They are not legislating from the bench, after all - in fact, they reason, they are trying to do their due diligence in determining exactly what the legislature wanted them to do. Without getting into a lengthy discussion, this is perhaps the greatest battleground of statutory interpretation today, and "I won't legislate from the bench," is simply not an answer. Is it appropriate to consult the legislative history? Why or why not? Is there a way to determine what Harriet Miers will do once she is on the court, given the information we have available now? I submit that it is not possible whatsoever to know - and further that this is one of the primary differences that separates a Scalia from a Kennedy.

Also unanswered by "She won't legislate from the bench," is the extent to which textualism will be applied, even when the plain meaning of the statute produces "absurd" results. For instance, in the infamous McBoyle v. United States (283 U.S. 25), the court examined a statute which prohibited the transportation of a stolen motor vehicle across state lines. The statute read, in part:

The term "motor vehicle" shall include an automobile, automobile truck, automobile wagon, motorcycle, or any other self-propelled vehicle not designed for running on rails."

The court held (unanimously) that an airplane was not a motor vehicle as designated under the statute in question. To what extent would Harriet Miers be willing to avoid the temptation to apply a little elasticity to avoid what would seem to be an absurd result? Or what about another infamous case, Wadsworth v. Siek (254 N.E.2d 738), in which a man, John Siek, beat his wife to death. He was indicted for first degree murder but pled guilty to the lesser offense of manslaughter - and was convicted and sentenced to prison. The court examined whether he should be allowed to inherit a portion of his wife's estate. The Ohio statute to which the court turned read in part as follows:

No person finally adjudged guilty * * * of murder in the first or second degree, shall inherit or take any part of the real or personal estate of the person killed. * * * With respect to inheritance from or particiaption under the will of the person killed, such person shall be considered as though he had preceded in death the person killed

Hmm. Well, Mr. Siek was not "adjudged" guilty of anything, and certainly not of murder in the first or second degree. Yet, it seems clear that the intent of the statute is to prevent people from benefiting from a death that they have caused. Do you go ahead and disallow Mr. Siek from inheriting, adhering to the apparent intent of the statute's creators, or follow the letter of the statute itself? I submit that these are the kinds of questions that you do not know how you will decide until they come before you in court. One kind of judge will allow the inheritance, and another will not, and neither will think in their mind, "I have just created law from the bench." We knew how John Roberts would decide in such a case, as we read his opinion that dripped with scorn for the statute which led to the imprisonment of an adolescent girl for eating a french fry on the Metro - but he applied the law anyway. About Harriet Miers, we know no such thing.

Other questions remain absolutely unanswered by "She won't legislate from the bench." Supposing that she is a textualist, to what extent is her textualism founded on Public Choice Theory (which often makes a tremendous difference in outcome)? Does she apply a linguistic canon like expressio unius (the expression of a thing is the exclusion of another)? Some other? How rigidly? To what extent are more substantive canons applied? To what extent will she be influenced by the potential consequences of her decisions, or the morality of them? How willing is she to apply the rule of lenity?

Now, I am not one of the yammering fools in the media who have bought into belief that Bush is dumb, and therefore incapable of even understanding these questions. But I am reasonably sure that they are not questions that he has to deal with on a daily basis. Bush, after all, has spent his entire life in politics in the executive branch, making administrative kinds of decisions. Legal decisions are of an entirely different sort, and require an entirely different set of presupposed questions. This is not a bad thing - I don't want Bush to approach things like he would if he were a Supreme Court judge. But it also means that when the President says, "she shares my judicial philosophy," which he explains as, "she won't legislate from the bench," I don't exactly assume that the above questions I have raised (and they are but a very few of the many appropriate questions) simply have had occasion to occur to him - and if they have, he's given me no indication what he thinks about them, so that I can have any idea what the heck he means when he says, "She shares my judicial philosophy."

Now, these are questions that are answerable for anyone who has sat on the bench for any length of time, and issued opinions in difficult cases. Similarly, even for some lawyers and clerks who have slogged their way through the constitutional muck, leaving a trail of memos and briefs along the way, a general tenor of the nominee's jurisprudential philosophy may be gleaned. For Harriet Miers, we might as well disembowel a goat and spread the entrails on the ground and try to divine the answers in that manner.

And I know that there are a lot of folks out there who still have a lot of trust in Bush where judges are concerned, and that's fine. Constantly, we are reminded of Janice Rogers Brown, Priscilla Owen, and William Pryor. But Bush has nominated literally hundreds of judges to the federal judiciary system over the last five years - and if I wanted to, I'll bet I could dig through and find three that turned out to be pretty crappy, too. None of this is intended as an indictment on the President, except to alert you to the fact that there are questions that a judge must consider that a President doesn't, and that Bush may well be assuming that he has all the knowledge he needs about Harriet Miers when in fact, he does not.

A commitment to "not legislate from the bench," is only a jurisprudential philosophy to someone who is not a judge - it is merely a platitude when one gets into the open areas of the law. And unless that platitude rests upon a solidly constructed foundation of broader legal principle, we may well be discussing the difference between whether we get a Scalia, or a Kennedy, or an O'Connor.

It's still a risk I'm not willing to take.

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