Denver Bar Association
January 2006
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Ruling From the Head, Not the Heart

by Morris B. Hoffman


Editor’s Note: Judge Hoffman’s article was printed in the Op-Ed section of the The New York Times on Oct. 21, 2005. Since his article was published, Harriet Miers has withdrawn her Supreme Court nomination.


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 views 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 she enjoyed it immensely and "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 1900s, 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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