The issue of judicial appointments is almost certain to come up in tonight’s presidential debate, with President Bush criticizing the Democrats for blocking his appointment of judges who will “interpret, not make” laws and Sen. Kerry complaining about nominees who are “out of the mainstream” etc. etc.
In addition, a recent article by election law expert Rick Hasen (via Mickey Kaus) suggests that judges may be called on to play a crucial role in this election, just as they did in 2000. Specifically, Hasen is referring to how the Supreme Court may treat a challenge to a provision on the ballot in Colorado that would, if it passes, divide the state’s electoral votes proportionally rather than giving all to the winner, and further would apply that proportional split to the results of this year’s election.
Hasen dismisses, perhaps too quickly, objections that the provision is unfairly retroactive and instead focuses — shades of Bush v. Gore! — on the conflict between the requirement of Article Two, Section One, Clause Two of the U.S. Constitution that “[e]ach State shall appoint [electors], in such Manner as the Legislature thereof may direct” (Emphasis added), and the fact that, if it passes, Colorado’s new scheme would have been enacted by the voters, not the legislature.
I find it very curious, by the way, and perhaps revealing, that Prof. Hasen’s rendition of this Article II requirement is that it “allows each state legislature to set the rules under which electors are chosen and allocated.” Allows? This is rather like saying that Article I allows Congress to exercise legislative powers, and allows it to consist of a Senate and House. Despite his innovative rendition of what Article II requires, Prof. Hasen does put the possible conflict over Colorado’s elector-sharing provision in the proper context:
When the U.S. Supreme Court was considering the 2000 Florida controversy, supporters of Bush argued that the Florida Supreme Court, in extending the deadline for Al Gore to contest the election and later by ordering a recount, had violated Article II. The argument was that the court had usurped the legislature’s power.
In its first decision in the Florida controversy, the U.S. Supreme Court suggested that such an argument might be plausible, though it failed to decide the issue conclusively. In the second decision, Bush vs. Gore, three justices – Antonin Scalia, Clarence Thomas and Chief Justice William Rehnquist – embraced the view that the Florida Supreme Court’s actions violated Article II. Dissenting justices argued that the Florida court decision was simply an interpretation of the legislature’s existing rules.
Ah, there’s the rub that frequently rubs conservatives the wrong way: “simply an interpretation.” The Florida Supreme Court “interpreted” the statutory requirement that election returns be reported within seven days to mean … not necessarily within seven days. Ditto with the amount of time required for contesting the results and several other matters.
As I have commented before (here, here, and here), judicially rewriting a statute through the magic of an unrestrained power of interpretation is called “liberally construing” or “reading loosely.” Liberal judges are quite adept, not surprisingly, at construing liberally. Nowhere was this talent on display more clearly than when the Supreme Court of New Jersey (see the first of those “here” links above) decided in the infamous Lautenberg-for-Toricelli candidate swap, much in the manner of the Florida Supreme Court, that “51 days” did not mean 51 days. New Jersey law, you will recall, allowed (yes, here “allowed” is right) for a candidate to be replaced on ballot up to 51 days before an election. Since The Torch went down in flames closer to the election than 51 days this appeared to be a problem. But to the New Jersey Supremes it was a piece of cake. All they had to do was “construe” the statute liberally. This was easy, since after all the statute didn’t say “absolutely, positively.” You think I jest, but listen to New Jersey Chief Justice Deborah Poritz, quoted in my first “here” link above:
Chief Justice Deborah Poritz observed that the 51-day rule for substituting a candidate appeared to be arbitrary. She added that other states had deadlines ranging from 30 days to a handful, noting that New York state’s statute says that failure to meet the deadline is a “fatal defect.”
“Our statute says nothing of the kind,” she said.
When conservatives say they want judges who will interpret the law, not make it, they don’t say enough, for the real problem is that liberal judges are loathe to recognize textual or other limits on their power to interpret. If “seven days” doesn’t mean seven days; if “51 days” doesn’t mean 51 days; if selecting presidential electors “in such Manner as the Legislature … may direct” doesn’t mean that the legislature — not the state supreme court, not the governor, not the people through plebicite — must devise the electoral scheme, then there would seem to be few limits on the power of “interpretation” through “liberally construing” words that say one thing to mean something entirely different.
Writing in the New York Times (cited in my second “here” above), legal reporter Linda Greenhouse called the 51 day limit a “formal deadline” — as opposed to what, one wonders? An informal one? Are formal deadlines less binding than informal ones? Similarly, New Jersey Democrats called the statutory requirement merely a “technical requirement.”
If unaccountable judges with lifetime tenure are allowed to exercise unrestrained, unconstrained powers to interpret, constitutions and statutes do indeed become nothing more than the “parchment barriers” Madison warned of, and the people get royally construed.
UPDATE [14 Oct. 9:45AM]
In a comment below Gabriel Rossman makes an interesting and important point about deference to the judiciary as a way of escaping political responsibility, and because he has prompted further thoughts I’m “promoting” these remarks to the text rather than leave them buried in the comments. (You’re so vain — ed. What, you can’t get Carly Simon off your mind?)
Re gay marriage, this point suggests that the question John Kerry should be asked is not whether he “personally” believes marriage is (does this mean “should be limited to”?) between a man and a woman, but whether or not he believes the Supreme Judicial Court of Massachusetts was correct in finding a right to gay marriage in the constitution of Massachusetts, and by extension whether he believes the U.S. constitution contains such a right.
Moreover, as I have just discussed in the post immediately preceding this one, Kerry has said that he thinks it would be improper for him to impose his own “article of faith” about when life begins on others who do not share that belief. Again, this is a way of ducking responsibility, for as a Senator and even as president Kerry has never had and never would have the ability to do that. He might propose legislation that would do that, but, since legislation requires majorities, if it passed that would mean that what was being imposed was no longer merely his personal belief.
Kerry thus thinks it is improper for a legislative majority to impose its view of a deeply moral issue on a minority that does not agree, but he does not think it improper for a court to impose its view on a majority that does not agree. This makes perfect sense in our system of government, for we believe that our constitutions — federal and state — recognize and protect rights that majorities may not infringe. But this means that, if Kerry’s current positions reflect anything other than political posturing, he believes that at least the constitution of Massachusetts recognizes a right to gay marriage but not a right to life that begins at conception. There is nothing absurd about this view, but as someone who, as president, would have the power to nominate judges it is fair and reasonable to insist that he defend it.
Finally, in deference to the fair and balanced standard we all admire, let me note that a craven habit of hiding behind judicial robes is not a practice limited to liberals. Ronald Reagan once announced, in signing some piece of legislation that he opposed (budget related?), that he thought the legislation unconstitutional but would leave that up to the courts. In my opinion, then and now, that violated his oath of office.
UPDATE II [14 Oct. 10:15AM]
Here is Mickey Kaus today on the gratuitous reference to Dick Chaney’s daughter:
Kerry was puncturing the “hypocrisy” of Bush’s position, as some Kerry defenders claim, only if the sole reason to oppose gay marriage is homophobia. I support the idea of experimenting with gay marriage, but surely it’s possible to be a non-bigot and be reluctant to immediately tinker with such a venerable social institution (even if modern monogamous marriage is itself a tinkering with the much longer-standing human tradition of polygyny). Once you admit this possibility of non-bigoted reluctance, then Kerry’s move looks less like hypocrisy-puncturing and more like a straight appeal to homophobia. As such, it does no credit to Kerry.
Similarly, Kerry’s opposition to seeing his own proclaimed “article of faith” about when life begins reflected in legislation makes sense only if the only basis for opposing abortion is sectarian. Once you admit the possibility of non-sectarian, indeed, non-religious, opposition to abortion, Kerry’s “article of faith” objection makes no sense.