Chief Justice Roberts told the U.S. Senators he has no “overarching judicial philosophy”

In the wake of the ultimately painless and tidy confirmation of now United States Supreme Court Chief Justice John G. Roberts, followed by the messy and embarrassing shuttling off the confirmation track of White House Counsel Harriet Miers comes the nomination of Judge Samuel G. Alito, whose 15-year record as a Third Circuit Appellate Court Judge has put “judicial philosophy” once again on the front burner of many political discussions. Chief Justice Roberts told the U.S. Senators, whose approval he received, that he has no “overarching judicial philosophy” and said nothing thereafter to contradict that statement. Harriet Miers obviously had no discernable judicial philosophy, overarching or any other kind. For that reason, her supporters thrust glimpses of her personal religious, political, and cultural views forward without further explanation during the prelude to her non-confirmation. They were unsuccessful in persuading even the right wing base of the President’s own party to accept these assurances that she would bring an agenda to the Court compatible with their own.

Now comes Judge Alito, who apparently is willing to discuss with U.S. Senators his 15-year record of appellate court decisions and even his judicial philosophy to a much greater extent than have other recent nominees. Also significantly, he has the intellect to do so. That will put the subject of judicial philosophy in plain view for the U.S. Senate and its audience of current events groupies, including this writer. With that in mind, I will be discussing judicial and legal philosophy in my next few columns. I also will be commenting on “judicial activism,” independence, and politics as part of the discussion.

The classic theory, which is also the conventional theory of what a trial judge in this state and country does is that he or she listens to witness testimony and views exhibits (physical evidence). The trial judge, based on this “record,” determines what the facts of the case are, and then researches “the law” by reading from codes and cases that reveal the “already existing statutory law made by legislatures and the common law made by appellate court judges.” The trial judge then applies “the law” to the facts or explains to a jury how to do that. In this manner, the judge, or the jury with the “judges instructions,” logically deduces the correct resolution of the issues before the court.

The classic theory of what appellate court judges do is that in panels of three or more, including at times the whole court; they review the record of the trial court to see if the trial judge did his or her job correctly. The appellate courts also as a part of that process, if it is necessary, determine whether the trial judge interpreted and applied the statutory as well as common law to the facts without error or if there was a jury whether the judge explained to the jury how to accomplish that logically and correctly.

This view of how the legal system works is known as the “Legal Process School.” It is especially influential at Harvard, where as Professor Cass Sunstein, a Professor of Law at the University of Chicago has pointed out, “leading figures, both liberals and conservatives, profess concern not so much for the results courts reach as for the damage any overreaching might do to the legitimacy of the judicial branch of government.”

Therefore, as Professor Todd Rahoff, a Professor of Law at Harvard, points out, “judges who subscribe to the ‘Legal Process School,’ emphatically distinguish what judges do in resolving legal issues from what legislators do to solve political problems.” They do so by insisting as Professor Dennis J. Hutchinson of the University of Chicago explains that courts adhere to “neutral principles” and that they “should not become champions of particular causes or litigants.” This philosophy would therefore preclude the judge from responding in a case, where the right of a woman to have an abortion is the issue, to women young and old, rich or poor whose pleas to be able to control their own bodies accompany their case or to the pro-life advocates who consider life to have begun at conception and, therefore, want to prohibit abortion under any circumstances. The only question for a judge who subscribes to the Legal Process School of Jurisprudence to answer is what does the Constitution, the applicable statutes, as well as the precedents say? The effect on the litigants is not to be considered unless it is to determine “legislative intent,” which is controversial itself.

This view of how the legal system works, or at least should work, contrasts and competes with several other theories that suggest that the way legal decisions are made by judges is not as outwardly and objectively directed as the classical theorists, the devotees of the Legal Process School claim. Indeed, in his book, “Law and The Modern Mind,” author Professor and Legal Philosopher Jerome Frank, quotes the famous Supreme Court Justice, Oliver Wendell Holmes, who said most presciently, “The life of the law is not logic. It is experience.” More on that theory of judicial decision making known as “Legal Realism,” as well as the schools of jurisprudence known as “Critical Legal Studies,” “Doctrine of Original Intent,” “Legal Progmatism,” “Law and Economics,” and various “Feminist” theories of jurisprudence in this same space in my next columns.

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