Judicial activism, judges' speech, and merit selection: conventional wisdom and nonsense.

• Author: Bonventre, Vincent Martin
• Position: Issues Facing the Judiciary

OPENING REMARKS

Thank you very much Ms. Noelle Lagueux-Alvarez, this year's Symposium Editor for the Albany Law Review. It is an honor to be the Faculty Advisor to the Law Review. As many of you already know, this Law Review is ranked within the top five percent of all the law journals in the country. (1) In a recent comprehensive study of over 900 legal publications nationwide, the Albany Law Review was ranked number thirty-four. That ranking puts this Law Review in the class with Harvard's, Yale's, Stanford's, and the law review's of other schools that are almost as good as Albany Law School.

The reason for that ranking is that the Albany Law Review is apparently one of the most cited and relied upon law journals in the country. In turn, the primary reason for that, of course, is that the students on the Albany Law Review are an extraordinary group.

Among the things that the law review students do each year is to organize and publish a symposium. Noelle already mentioned the one last year on the meaning and use of torture; (2) we had one two years ago on "manufactured humanity"; (3) in prior years we had one on the concept of violence in international law, (4) and another one on gay, lesbian and transgender rights. (5) The Albany Law Review has consistently produced symposia addressing issues that are extraordinarily important, provocative, and at the forefront of current legal, social, and political developments.

Today, the symposium topic is Issues Facing the Judiciary. Well, of course, that's the world. We have narrowed the topic to three specific areas of focus: judicial activism, the First Amendment rights of judges, and judicial selection. Judge Richard C. Wesley of the Second Circuit had to cancel his appearance as one of our panelists. To compensate for his absence, I have been asked to expand my remarks a bit. I would say that I will try to fill in for Judge Wesley, except that what I say today is not likely to be what he would say if he were here. In any event, welcome to all of you.

APPEALING PROPOSITIONS

Presumably, when we speak of judicial activism, we mean something as opposed to restraint exercised by courts and judges--whether that restraint be deference to the other more democratic and political branches; whether it be standing by precedent; or whether it be narrowly or strictly construing statutory and constitutional provisions. (6) When we speak of the First Amendment rights of judges, we are referring to the speech and expressive activities which traditionally have been forbidden to judges. (7) When we speak of judicial selection, we are talking about the questions regarding the right and wrong ways, the better and worse ways, of selecting individuals for the judicial role. (8)

The common wisdom--and the "company line"--with regard to the first topic, judicial activism, is that it is illegitimate, that it is an abuse of judicial power, and that a strict self-restraint is much more appropriate for the judicial role in a constitutional democracy. (9) With regard to the second topic, judges' speech, the common view is that judges and judicial candidates should avoid any political and legal expression and expressive activities, particularly about the issues of the day; those holding judicial office must preserve the appearance of neutrality, impartiality, and objectivity. (10) With regard to the third topic, selection, the widely accepted notion is that judges are better selected by some merit system of appointment, rather than by popular election. This is necessary in order to reduce partisan politics and to enhance the quality of the bench; moreover, the people do not really understand the role played by judges anyway. (11)

All of these propositions are clear, unambiguous, and appealing. Unfortunately, they are all much more apparent than actually true.

These presumptions--which seem somewhat nauseatingly repeated--are, at best, superficial and misleading. At worst--especially when they are ritualistically recited and forcefully asserted by some in public office, and even on the bench--these propositions are deliberately deceptive and politically motivated. Let us examine them in reverse order.

MERIT SELECTION

First, are judges better selected by a merit system of appointment? Of course, the first question that arises is, what is merit? (12) If that is the aim of the merit systems, then what is it? The necessary implication of such systems is that some prospective judges are more meritorious than others. But is there some formula for making such a determination? Or is determining merit more of an art than an exact science? If it is an art, then perhaps the criteria for merit are nothing more than indicia of minimum qualifications. If they are even that, are the criteria to be weighed in any particular order? Who is to do the weighing of the criteria or the comparing of the prospective judicial candidates to determine merit? If we do not trust the voters--i.e., the people--because elections are too political, should we trust public officials who secured office through partisan political elections?

Are we deluding ourselves into embracing so-called merit appointment systems? Do we honestly believe that they take the partisan politics out of selection? If they do not actually do that, if they do not take partisan politics out of selection, then what is the merit of so-called merit systems?

Do we really believe that a conservative Republican governor is going to appoint a liberal Democratic judge to the state's highest court? Or do we fully expect that governor to favor a conservative Republican judge--even one possessing substantially inferior merit? (13) Or is the political affiliation and philosophy of a prospective judge a legitimate measure of merit? (14) We know that, in fact, political affiliation and philosophy are often, if not virtually always, a primary consideration in judicial selection. (15) Since it is, why should the voters not make that political choice?

Perhaps merit systems actually serve different interests and purposes--different than actually enhancing merit. Perhaps the dignity of the process, more than merit, is the virtue promoted. Perhaps it is the independence of judges and the independence of their selection--i.e., independence from the popular will--that is promoted. But none of those characteristics or qualities are coterminous with merit. Instead, they are just as likely to conceal from public scrutiny the very political nature of the resulting selection process as they are to ensure that the resulting selections are indeed merit-based.

None of this is to suggest that merit appointment systems should necessarily be opposed. But these are questions that must be acknowledged and answered, especially by those advocating that such systems replace popular elections.

JUDGES' SPEECH

Let us now consider the notion of judges and judicial candidates avoiding expressive activity about political and legal issues of the day. Judges, of course, are political actors. (16) They are sometimes political in terms of crass partisanship; but always in the Aristotelian sense. Their decisions affect the body politic. Their decision making always entails rights and responsibilities, powers and limitations, freedom and authority, government and the individual, society's rules, the requirement for compliance, and the consequences of noncompliance. Judges render judgment, exercise discretion, choose between competing interests and values, make policy and--yes--make law too. (17)

Ideological compatibility is usually viewed as a pre-requisite for selection by an appointing president or governor. Presidents George Washington and John Adams appointed partisan Federalists; FDR appointed justices who were sympathetic to the social welfare legislation of the New Deal. (18) President George W. Bush is not likely to appoint activist civil libertarians to the judiciary; a President John Kerry almost certainly would have. Here in New York State, Governor George Pataki, much like President Richard Nixon before him at the national level, made clear his intention to change the composition--and thus the ideological and jurisprudential direction--of what he deemed, and Nixon before him had deemed, a criminal coddling high court. (19)

Where judicial selection is by election, political parties typically select nominees from among their own faithful ranks. The state or local Republican Party is not likely to choose or support a partisan Democrat who is hostile to its positions and priorities. Even where selection is by non-partisan election, judicial candidates--like all other human beings, not excluding already-sitting judges (20)--have their own political, philosophical, and moral views. Indeed, all judicial nominees, whether their selection be by appointment or election, continue to possess political, philosophical and moral views. A judicial robe is not an ideological lobotomy.

We all know that. If we are politically liberal, we generally want liberal justices and judges. If politically conservative, we prefer justices and judges whose ideological leanings are conservative. Moreover, when Justice Antonin Scalia delivers an extrajudicial speech, we are not at all surprised that he sounds politically conservative--anymore than we are surprised by his judicial votes and opinions that promote politically conservative values. (21) We are similarly not surprised when Justice Ruth Bader Ginsberg delivers a liberal sounding speech--anymore than by her politically liberal leaning votes and opinions. (22)

The point of all this is simply that prohibitions on political speech and expressive activity by judges and judicial candidates may help to conceal their ideological leanings; but such prohibitions certainly do not eliminate them. If a judge or judicial candidate has political, philosophical, and moral beliefs, that can hardly be a surprise, let alone necessarily a bad thing to be avoided. (23)...