Utah Bar Journal

Bar associations and individual members of the bar have been noticeably silent in coming to the defense of judges and an independent judiciary by explaining to the public the crucial role of an independent judiciary in our system of government. The silence of the Bar has been disquieting, particularly in the face of physical attacks on judges, the undue politicization of the process for appointing judges, the growing trend of contested elections for judges at the state level, and by simplistic political attacks on the judiciary for doing the job judges are asked to do in a society governed by "the rule of law."

Political hacks have sought to use tragic cases like the Terri Shiavo case in Florida to attack judges by calling them "activists." They threaten to "do something" about those judges who ignore Congress's unconstitutional and cynical intrusion into the Shiavo case. In that case, state judges were charged by law with determining whether the law of Florida grants guardianship powers to a husband to make decisions for his comatose wife and to determine what were the wishes of Ms. Shiavo should she ever end up in a persistent vegetative state. State judges interpreted the law and found the facts after open hearings in court. Those factual findings and legal conclusions were affirmed repeatedly by both state and federal appellate courts - political opportunists in Congress to the contrary notwithstanding.

Additional attacks have been launched against the United States Supreme Court in general and Justice Kennedy in particular over the Court's decision in Roper v. Simmons, holding the Bill of Rights' prohibition upon "cruel and unusual punishment" barred the execution of juvenile offenders below the age of 18. Justice Kennedy, after surveying the growing trend of states abolishing capital punishment for juvenile offenders under 18, took note of a similar trend internationally and the fact that the United States is the only country in the world that continues to sanction the juvenile death penalty. Some powerful members of Congress cited the Court's use of international law as grounds for removing judges from the bench, and one Leader of the House even went so far as to claim that a Justice's use of the Internet to do research was grounds for removing that Justice from office.

While such absurd claims can easily be dismissed as the bizarre ranting of the ignorant, or cynical attempts by political fanatics to gain control of the courts, the fact that they resonate with many citizens confused about judges allegedly "making law" requires a response from those most familiar with the job of judges who can speak to the issue intelligently - namely, lawyers.

In a growing number of states, contested elections for judgeships have become the norm. Candidates are forced to raise campaign funds from special interests seeking the election of judges who will make law they agree with rather than objectively consider opposing arguments in disputed cases while seeking a reasoned result in accord with the law. The corrupting influence of raising campaign funds, which has undermined public trust in the legislative and executive branches at all levels of government, is now undermining public trust in the judicial branch of government in many states. Public trust in the independence and objectivity of the judiciary can only be further compromised by the popular election of judges requiring the political prostitution of judicial candidates to raise campaign funds to run for the office, or to defend against a well-financed campaign to defeat an incumbent.

Another and related problem is the undue politicization of the process for nominating and confirming judges at the federal level. The President and many members of the Senate seek the appointment of judges because of their rigid political views rather than seek out experienced and reflective candidates capable of re-thinking their own assumptions and objectively weighing conflicting evidence and arguments about the relevance and meaning of the law. Misleading statements about seeking to appoint judges who will only "apply the law" and not "make law" have become rallying calls for those who seek the appointment of judges who will "make law" that they agree with - not judges who will openly resolve ambiguity in accord with reflectively held values always open to reconsideration. Intellectual arrogance or shallowness, rather than intellectual humility, appears to be the leading qualification of candidates proclaiming they will not "make law" but will only apply the "given law." Such candidates either believe that they have all the "truth" needed to do the job, or do not appreciate the complexities of the job.

Any experienced lawyer or judge knows that only a relatively small category of legal disputes become court cases that require judges to resolve fact disputes or "make law." They are cases where there are disputes about the facts or disputes about the relevance, meaning or applicability of the law to the facts. Such cases are often appealed to higher courts, where judges cannot avoid "making law" because it is the relevance or meaning of the law, and the way the law interacts with the facts, that create ambiguities that can only be resolved by an independent judiciary. Resolving ambiguities about the meaning of a law or its applicability to the facts in dispute is an inherent part of the job of a judge because the words used in a law do not anticipate the dispute before the court; the words used in the law are ambiguous in the circumstances of the case; or, the consequences of deciding a case one way or another do not seem to comport with the policy behind the literal words used in the law.

Many politicians demand that candidates for nomination or confirmation to a judgeship promise to "apply the law and not make law," or that they not make "political decisions." Such simple-minded demands are impossible to fulfill because litigated disputes often raise questions about: 1. what is relevant to a particular dispute; 2. what the relevant law means in the circumstances of a particular dispute; or, 3. how that law ought to interact with the facts in light of the consequences of the decision. Nor is it always clear: A. which "facts" are relevant to a dispute in light of the relevant law; B. what the relevant facts mean in light of the meaning of the relevant law; or, C. how the facts ought to interact with the law in light of the consequences of the decision. In all of these circumstances, it is necessary that the judge "make law" and/or "find facts" in order to resolve the dispute.

For example, a choice must be made between conflicting rules, social and moral policies, and practical consequences in a case where a law appears to vest in a spouse guardianship over a comatose patient and there is a dispute over whether the patient has any hope of recovery. What rights do the parents of the patient have under the laws enacted by the state, and is there any hope that the patient might recover from what appears to be a persistent vegetative state? We entrust an independent judiciary, untainted by fear of political retribution or corruption, with the power to make such difficult decisions based on evidence heard in open court and the arguments of advocates representing opposing parties to the dispute. The choices that a judge makes in such cases are constrained by statutes, prior decisions, reviewing courts and the public imposing an obligation to be objective and rational in making a decision. The public can inspect the reasoning of those charged with making such decisions because of the court's obligations to hear cases in open court and to write coherent opinions explaining the rationale of the decision. If the decision is rational, coherent and persuasive, the decision will stand. If it is not, the decision will be reversed by a higher court or the legislative branch, or will be eroded over time by subsequent decisions calling its assumptions or reasoning into question.

Judicial decision-making is not like a vending or slot machine where one puts fixed facts into a machine, pulls a lever and out comes the "right answer." Most of the words in the law like "negligence," "privacy," "due process," "speech," "interstate commerce" and "equal protection" are ambiguous and have no counterpart in physical reality. The words of law symbolize relational concepts which represent policies or values behind the words used - normative propositions with evolving meanings in light of changing factual circumstances; evolving understandings of reality; reflections upon the history of society and its laws; meandering precedent dealing with the legal concept in somewhat similar circumstances; and changes in philosophy, morality and technology - indeed, evolutions in every field of human knowledge.

The words used in our laws are not rigid boxes with fixed meanings to be mechanically applied to a dispute no matter the moral context or practical consequences of doing so. Legal words are flexible concepts and tools for the analysis of disputes that arise in countless different circumstances. While relatively fixed when at rest, legal concepts become flexible and dynamic when called upon in a controversy questioning their relevance, meaning or applicability to the facts of a particular dispute. Courts deal with ambiguity, not certainty. It is the fundamental reason legal disputes arise and why society needs an independent judiciary free of political intimidation and financial corruption to resolve those disputes.

Controversial social issues reaching the courts often raise ambiguity about the relevance, meaning or applicability of the words of the "law" because those who wrote those words did not foresee the controversy before the court; evolving social or technological changes call into question prior understandings of the words used in the "law" in light of new facts; unforeseen consequences become apparent in circumstances not anticipated by the law giver; or one "law" is found to be in conflict with another "law" and the conflict must be resolved to settle the dispute. In all these circumstances a choice must be made and we entrust to an independent judiciary the responsibility of making the choice under the general guidelines set forth in legislation, the Constitution and prior precedent. We do not entrust this unavoidable duty to political hacks in Congress, to legislators concerned primarily with expanding their power by ensuring campaign funds keep flowing, or to special interests financing the election campaigns of judges.

Where does a judge turn in making these kinds of decisions? Justice Cardozo answered this question in his book The Nature of the Judicial Process by saying: "If you ask how [the judge] is to know when one interest outweighs another, I can only answer that he must get his knowledge just as the legislator gets it, from experience and study and reflection; in brief from life itself. . . . [Restrictions on the judge] are established by the traditions of the centuries, by the example of other judges, his predecessors and his colleagues, by the collective judgment of the profession and by the duty of adherence to the pervading spirit of the law. . . . [W]ithin the confines of these open spaces and those of precedent and tradition, choice moves with a freedom which stamps its action as creative. The law which is the resulting product is not found, but made. The process, being legislative, demands the legislator's wisdom."

In recognition of the unavoidable duty of judges to "make law" in some cases, courts must rely upon the other branches of government to implement their decisions, which depends on the consent of the people to abide by the decisions of an independent judiciary. The only independent powers of the judiciary are to resolve the disputes brought to them and to explain their decisions. That is why courts publish their opinions: so society can decide whether the decision is rational, persuasive and the product of a due concern for the conflicting policies and consequences involved. If the decision does not meet these standards, it will not stand against the onslaught of future disputes challenging its assumptions or changes in the law made by the other branches of government. If the decision is found persuasive and well reasoned, it will stand the test of time and become part of the "pervading spirit of the law" until some future challenge calls its relevance, meaning or application into question.

To carry out this necessary and unavoidable responsibility of judges, we need well-schooled, thoughtful and self-reflective candidates for judicial office of unimpeachable personal integrity who appreciate the heavy burden of "making law" and "finding facts." Those who view judging as a form of vending machine "applying the law" to the facts should not be nominated or confirmed as judges. They do not appreciate all the responsibilities of the job and lack an appreciation for its complexities.

Nor should rigid ideologues, whether of the right or the left, be nominated or confirmed for the bench. They lack the ability to see and cope with ambiguity and the capacity to re-examine their fixed assumptions. That is why such candidates can claim they will only "apply the law" and not "make law" - the law is fixed for them because their ideology dictates what law is relevant, what it means and how it should be applied, persuasive arguments to the contrary notwithstanding.

It is essential that nominees for the courts be experienced, well educated, and have a capacity for humility and self-reflection about their most basic beliefs. They must be open to new ways of understanding our changing, complex and diverse society, and the ambiguity which arises when applying existing legal concepts in light of past precedent to new disputes constantly arising in our society.

Those nominating and confirming candidates for the bench must have a spirit of moderation in carrying out their functions because, as Judge Learned Hand noted in his classic article The Contribution of An Independent Judiciary to Civilization: "[A] society so riven that the spirit of moderation is gone, no court can save; that a society where that spirit flourishes no court need save; that in a society which evades its responsibility by thrusting upon the courts the nurture of that spirit, that spirit in the end will perish." Hand defined the spirit of moderation as "the temper which does not press partisan advantage to its bitter end, which can understand and will respect the other side, which feels a unity between all citizens - real and not the fallacious product of propaganda - which recognizes their common fate and their common aspirations - in a word which has faith in the sacredness of the individual." Too often in recent years the nomination and confirmation process for judges, and too many of the candidates nominated, have not reflected this spirit of moderation. Instead, pressing "partisan advantage to its bitter end" appears to have become an end in itself, jeopardizing both our society and the independence of the judiciary.

Judges and those who nominate and confirm them must understand that judges "make law" for another reason as well. In a society like ours, committed to the "rule of law," an independent judiciary is essential to the maintenance of the rule of law. Judges are not rubber stamps for the actions of the other branches of government. Nor can judges bow down to the political winds of the day if we are to have rights and responsibilities defined by objectively determined legal standards. An independent judiciary, as Judge Hand pointed out, "is an inescapable corollary of enacted law...." One cannot have a "rule of law" without an independent judiciary with the power to "make law" by saying when those laws are applicable to a dispute, what those laws mean in the context of a dispute, and how they should be applied in the circumstances of a particular dispute.

Paradoxically, an independent judiciary with no power other than the power to find "facts" and "make law" is essential to "the rule of law" itself. It is time for the Bar and individual attorneys to stand up and defend the independence of the judiciary and seek to raise the level of political discussion about the nomination and confirmation of judges above the sorry state in which it is now conducted. Members of the Bar must take the lead in explaining to the public why personal and vitriolic political attacks on judges, the undue politicization of judicial appointments and the popular election of judges imperil an independent judiciary and the ideal of the rule of law. Far more is at stake than the short-term gain of one political party or the other, or the venting of personal disappointment with a particular judicial decision. Ultimately, the rule of law itself is at stake.

John J. Flynn is the Hugh B. Brown Professor, Emeritus at the S.J. Quinney College of Law, University of Utah. After teaching for 42 years, he retired in June of this year.

Utah Bar Journal - Volume 18 No. 4 - July/August 2005