The New York Times
October 21, 2005 Friday
Late Edition - Final
SECTION: Section A; Column 1; Editorial Desk; Pg. 25
LENGTH: 702 words
HEADLINE: Ruling From the Head, Not the Heart
BYLINE: By Morris B. Hoffman.
Morris B. Hoffman is a state trial judge in Denver.
DATELINE: Denver
ONE thing can be said of President Bush's nomination of Harriet Miers. It has
focused the spotlight of the Constitution's ''advice and consent'' clause on its
proper target: the nominee's qualifications and not her politics. But one of the
most important ''qualifications'' is a nominee's overarching view of the role of
the judiciary in American life. With straight faces, Senate Democrats demand
Supreme Court appointees who will ''protect individual rights,'' except, of
course, the wrong kinds of individual rights (like the right to be born, the
right to bear arms, or the right to be considered for state jobs, contracts or
college admission without regard to race or gender). Republicans demand, with
equally straight faces, justices who will ''apply the law, not legislate from
the bench,'' despite a tradition of judge-made law that goes back centuries, and
despite a written Constitution that even the most ardent textualists must
concede contains at least a couple of ambiguous words.
This battle over the meaning, and continued vitality, of judicial restraint has
been going on since Marbury v. Madison, when Chief Justice John Marshall, in the
epitome of naked judicial activism, seized for the judicial branch the power to
interpret a Constitution that itself was utterly silent on the matter.
Today's version of this fundamental philosophical question, on which our two
major political parties seem so sharply to disagree, is this: Does a judge's
obligation begin and end with the law, or is the law merely an instrument
through which judges should strive to achieve greater social good? It would be
unfortunate indeed if we lost sight of this important and legitimate question in
our ache for moderation and our distaste of political excess.
Several years ago I had lunch with some trial court colleagues from another
jurisdiction. I asked one of the newest judges how she liked the job so far, and
she said that she enjoyed it immensely and that she ''was even able to do some
good in a case last week.'' Never has there been a more succinct confession of
the roots of judicial activism. The good news is that even this activist judge
admitted she wasn't free to ''do good'' all the time; she was often constrained
by the unavoidable limitations of that nettlesome interloper, the law.
It is this difference over the perceived role of judges, more than any
differences in interpretative theories or even political philosophy, that I
believe distinguishes restrained judges from unrestrained ones. Those of us who
see the judiciary as an essentially conservative institution, who are wary of
our own power, and who know that all manner of personal preferences can be
hidden in the sheep's clothing of ''discretion'' or ''interpretation,'' don't
try to find ambiguities in the law that we can then replace with our own views
of proper public policy.
Truly restrained judges follow the law no matter how politically or socially
unpleasant the destination. A week doesn't go by when I am not forced by the law
to do something that I would rather not do if I were, say, a philosopher-king
unencumbered by the legislation of mere mortals.
In the early 1900's, Justice Oliver Wendell Holmes Jr. was mistaken by many
Progressives as one of them, when in a series of dissents he argued that
Congress's progressive legislation was not unconstitutional. But in fact Holmes
loathed the Progressive agenda and years later described the essentials of
judicial restraint with these now famous words in a letter to a friend: ''If my
fellow citizens want to go to hell I will help them. It's my job.''
We need more judges, at all levels, who are not frustrated policymakers, who
won't strain to find ambiguity in unambiguous words because they want to ''do
good,'' and who won't hesitate to go where their own principled application of
the law takes them, even if (and especially if) it is a result they would not
freely choose.
As the Senate takes up the nomination of Harriet Miers next month, let us hope
the process sheds as much light on her views on the role of judges in the
constitutional firmament as it does on her political and personal preferences,
or on the value of her other qualifications.
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