03/21/2017
REAL TALK ABOUT PRECEDENT AND JUDICIAL DECISION MAKING
The current Supreme Court nominee, Neil Gorsuch, is being questioned by Democrats and Republicans about his views regarding different cases that have already been decided by Supreme Courts past. Judge Gorsuch has said repeatedly that he decides based on “the facts and the law,” but that is both true and false. Let’s have some real talk about facts and law.
First of all, as any seasoned litigator knows, “facts” and not immutable, objective, tangible items. What the facts are, which facts are important, who is or is not a credible reporter of “facts”, what will be admissible or inadmissible , what will or won’t be relied upon – these are all decisions that a Judge must make. Where he or she comes from, what his/her life experience has been, who her/his friends and associates are and have been, what his/her prior decisions have been, what her/his writing or philosophy is or was, whether s/he has evolved or is willing to change, who s/he has been willing to work for and why, these are all more telling bits of information than what his or her opinion about any given case may be.
In the criminal context, will a judge be willing to consider that law enforcement does not always tell the truth, that people who are accused of crimes can and do tell the truth just like anyone else, that the benefit of the doubt goes to the accused and not to law enforcement? When a judge is permitted to exercise discretion in favor of the accused, will he do it? When the government’s case is weak, will the judge consider that? These are important questions. When presented with an affidavit for a warrant, will the judge ask important questions about the evidence, or simply sign off as a matter of routine?
In the Court of Appeals, will a judge keep in mind that his/her decisions have an important impact on the people who will have to live by them? Applying a statute or common law is a matter of interpretation, which is necessarily a subjective process, so knowing from where a judge is coming will be more illuminating than how he thinks about precedent. The problem with focusing on “precedent” is that its nature is mutable, by design. How a group of judges follows precedent will differ according to the individual judges and the particular “facts” of a given case. Precedent is meant to be changeable in accordance with the mores of a given time, ideas about social justice, and policy considerations.
Secondly, the “law” is what the Supreme Court says it is. This is why it is so important who the nominee is and where she or he comes from, and how s/he thinks. The law is created by legislators who may, or may not, take into account the Constitution, prior laws, or anything beyond their own provincial and political interests. It is the job of the Supreme Court to keep an eye on these questions and to provide an important check on the legislative branch when it oversteps its bounds and transgresses the Constitution. The “law” is neither objective nor immutable. It is the product of a messy “sausage making” process that often is the result of horse-trading, hard bargaining, compromise, and the effects of the balance of power at any one time. The way in which judges must treat the “law” is not as an immutable given, but as an elastic concept that is subject to Constitutional and equitable concerns. If judges only “follow the law” they serve no useful purpose, no check or balance, no fulfillment of their constitutional role as “arbitrator” and “interpreter” of what the law is.
Judges are by their nature privileged individuals and political animals. No judge in the federal system gets to the bench without having cultivated political connections, having held positions of power, and have hewed to the party line – whatever that is in her or his time. Knowing this to begin with, we need to demand probing questions into those experiences and ideas that have shaped and captivated nominees, and the extent to which each has a breadth of experience that will inform his or her work, integrity to analyze and interpret the law based on recognizable principles, and the courage to go against the political currents of the time. Most importantly, a judge must be conscious of his or her role as a protector of the minority position or the most vulnerable and voiceless among us.
Can we stop pretending that judges are neutral, without opinions or relevant experience, and have an honest discussion about who our judicial nominees are, how they got to the positions they hold, and why they are best-suited to the position they seek?
