In my last column, I discussed the judicial philosophy of Legal Pragmatism as its originator, Supreme Court Justice Benjamin Cardozo, articulated it, and as its most illustrious modern day practitioner, Judge Richard A. Posner, has refined it. Lest there be no question as to the bias of this trial judge and Op-Ed Columnist for the Daily Record, I am proud to embrace the writing and philosophy of these two distinguished judges, authors, and legal philosophers.
Pragmatists believe that legal rules should be viewed as instruments of justice. As Cardozo says and Posner emphasizes, “Few rules in our time are so well established that they may not be called upon any day to justify their existence as a means adopted to an end. The function of law is to ensure justice and equilibrium. The origin of the law is not the main thing – the goal is. There can be no wisdom in the choice of legal path unless we know where it will lead.”
It is clear, however that this view is by no means universally held. The political campaign preceding the election later this year of all state and county officials from Governor to County Commissioner will, no doubt, highlight lack of consensus among the candidates and the voters on what is the proper judicial philosophy. In fact, as the Baltimore Sun, Washington Post, and many other newspapers in Maryland have noted recently, quoting Governor Ehrlich and other state officials, this year’s elections for the first time will openly feature judicial philosophy as an issue to be considered by the electorate when voting on candidates to be the State’s next Governor. That is because the next Governor will appoint three out of seven Court of Appeals’ judges, a number of Court of Special Appeals’ judges, and many trial court judges. The voters must also elect the State Senators, who will be asked to confirm most of the Governor’s nominees for both appellate courts and for one of the trial courts.
Judicial philosophy has been and remains a very visible issue in federal elections. Although officials in both parties may bemoan its rise in Maryland State politics and elections, I suspect none will deny its inevitability as a result of the issue of gay marriage being ruled on by Circuit Court Judge M. Brooke Murdock, as well as the recently expedited pace and volume of death penalty litigation pending before the highest court in this State.
The issue of judicial philosophy, however, will not, I predict, be defined as a choice between the theories of jurisprudence, which I have described in this space bi-weekly for the last five months. Those theories of jurisprudence, i.e. Originalism, Formalism, Legal Process School, Legal Realism, Critical Studies, Pragmatism and the various Feminist theories of jurisprudence, will not be explained or even discussed in the upcoming political campaign. No, instead debate will no doubt be cast as between those who would appoint “judges who interpret the law” versus those who would appoint “judges who will legislate,” i.e. make law from the bench.
The fact of the matter is that, regardless of his or her judicial philosophy, when a judge applies any law passed by the Legislature or a court case with precedential authority to a new set of facts, the judge is, in effect, expanding the application and perhaps the meaning of the law. This cannot be avoided. It is, therefore, silly to suggest that somehow a judge should refrain from doing so, let alone be reversed or disciplined for doing his/her job.
This does not mean that judges should not be criticized based on their performance in office or even their philosophy. If a judge’s ruling on a legal issue is incorrect, that is what appellate courts are for. If a judge calls attention to a law on the books by an unpopular ruling, which when applied to a certain perhaps unanticipated set of facts produces a socially undesirable or even unjust result, the Legislature certainly may, and frequently does, correct this by further legislation, changing or correcting the statute. It is not, however, appropriate to shoot the judicial messenger.
Governors, Presidents, and in some states voters, including those in Maryland, may properly choose their judges on the basis of their judicial philosophy. There is nothing wrong with that, but let’s be intellectually honest and not pretend that judges of one philosophy are legislating, while judges of the other philosophy are not.
Legislators, and even judges themselves, disagree on the subject of the appropriate level of “judicial activism.” For example, Former Judge Ralph Winter of the U.S. Court of Appeals for the Second Circuit argued in an article entitled, “The Activist Judicial Mind,” found in the book, “Views From the Bench: The Judiciary and Constitutional Policies,” that judicial activism often reflects “reformist” attitudes (namely, “hostility to a pluralist, party dominated, political process,” “a demand for rationality” in public policy, and “skepticism about the morality of capitalism”) while lacking the capacity to carry out true reform. The cumulative impact of these attitudes ought to be a source of apprehension. They reflect a lack of understanding of the full political process and of the mysteries of government along with a generalized hostility to important institutions in our society, which they seek to weaken but not replace.
In contrast, the late retired Judge Frank M. Johnson of the Eleventh Circuit, who authored many, if not most, of the opinions that applied the 14th Amendment Due Process and Equal Protection Clauses to African American citizens in the South, was accused of legislating when he did so. These opinions ordered the desegregation of de jure segregated schools in the South. They also banned discrimination in employment, as well as public accommodations. Judge Johnson wrote an article entitled, “Judicial Activism is a Duty – Not an Intrusion” also published in “Views From the Bench: The Judiciary and Constitutional Policies,” which reads as follows: