D.c. Remarks: Judge Making 101

"Four things belong to a judge: to hear courteously, to answer wisely, to consider soberly and to decide impartially." Socrates, 470-399 BC

One of the most highly contested political issues is that of who will serve as federal judges in the future. With major world events unfolding in recent months, the issue of judicial nominations understandably received little major media attention. As a result, unless you are a political junkie you likely have not been informed of this issue and its significant impact upon the operation of our country’s laws.

Over the past two years the federal courts have become bogged down with cases due to openings that have not yet been filled. The situation has reached a point where many federal courts are in “crisis status” because the amount of cases filed have swamped those judges who are already on the bench. William Rehnquist, Chief Justice of the U.S. Supreme Court has pleaded with the Senate to act with “reasonable promptness” on those presidential-appointed judicial nominees currently under their consideration. Unfortunately, many in the Senate have seen fit to ignore the serious need for action and instead have played procedural games with the nomination process, causing enormous delays.

Many Christ-following law students begin their legal careers with grand notions of becoming the next Rambo litigator, one who will run through the halls of justice with weapons in hand vanquishing any opposing force that would seek to destroy the Christian heritage and legal foundations of our country. I was one of these, aspiring to be a great litigator in the realm of public policy, working on issues of vital importance to the preservation of the family and its place in society.

In the middle of my law school career I took a position with a Christian organization in the D.C. area working on these ideals. Much of my work was focused on the legislative side of the law, working to enact good laws so our litigation department would not be forced to spend time in court to repair damage that otherwise could have been prevented.

After graduating from law school I began to work on a federal level doing the same thing. A couple weeks back while discussing the importance of good legislation I commented to my intern, “You don’t need good litigators if you have good laws.” This statement was premised on the understanding that the judge before which the litigator would stand is one who would apply the law to the case rather than his own or general public opinion on the issues of the case.

In essence, without good judges, good legislation is useless. If those sitting as judges do more than interpret the law—moving into the realm of lawmaking—the whole field of law suffers because it has been morphed into whatever opinion the particular judge has about the situation.

A good analogy can be seen in the construction of a new home. Suppose that the home builder decided one day that he was no longer bound by the laws of gravity and thought that he would build structural elements into the new home based upon what he thought good at the moment, or based upon whatever winds of public opinion happened to be carried his way. Little imagination is required to know what would happen if the fundamental laws of gravity are ignored in construction, namely failure of the structure itself.

Law, just like a home or any other building has foundations which if ignored will crumble. If the foundation is destroyed, anything built upon the foundation will also fail. The foundations of our legal system can easily be traced back to the “laws of nature and of nature’s God.” If our judicial system moves away from a legal mindset that is based upon the “rules” God has set to govern not only society but the world as a whole, then we will rapidly experience a crumbling of that system.

It takes a special person to serve as a judge. Under the rules of judicial ethics, judges are prohibited from acting in any manner that could be seen as affecting their ability to act impartially. Judges are held to a higher standard than the rest of us. Many judges take serious pay cuts for their service. While judges are paid enough to live comfortably, it is worthwhile to note that being a judge is truly an act of sacrifice and service to one’s country.

The financial sacrifice is not the only cost of becoming a federal judge. In order to be confirmed by the Senate, virtually every aspect of the nominee’s life will be examined in painstaking detail. Since it is very unlikely that everyone will support the nominee it is certain that anything unpleasant in their background will be discovered and quickly publicized.

Many people don’t realize that federal judges are not appointed for a few years or even a decade, but for life. In essence they become married to the position, leaving only by death or resignation. As a result, one of the greatest ways that a President can impact our nation is through the nomination of persons with outstanding character to become federal judges.

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An old saying goes, “justice delayed is justice denied.” Whether or not this is the case will vary from situation to situation, however, the crux of the statement does have a large element of truth. Many of the current judicial nominees have waited over 700 days for a vote on their nomination. They could have been on the bench long ago working to solve problems for those needing help.

Unfortunately, all indications from the Senate point toward more delays in the confirmation process. Even though each judicial nominee can count on at least 51 votes if their nominations were brought to a final vote, no final votes have occurred for many because of a Senate rule, which allows for endless debate unless 60 Senators decide to call for a final vote.

The leadership of the Senate has attempted four times to call for a final vote, but each time they have received only 55 votes, five short of the 60 needed. Those opposing the President’s nominees have done so because they do not believe in a judicial philosophy where judges act as interpreters of the law. They instead desire judges who create law themselves by going beyond the laws enacted by the legislature. The reason for this is simple. Many of the causes supported by the liberal members of Congress cannot easily be achieved through legislation. Members of Congress are subject to re-election either every two or six years (two for members of the of the House of Representatives, six for Senators) and as such fear that their constituents will be unfavorable to them if they were to propose legislation which does not mirror the morals of those voting. Federal judges on the other hand are not subject to re-election and as such are more likely to act within their true convictions, be those either good or bad.

The problem in the Senate comes down to a very basic difference in philosophy. The camps are split between those who desire judicial restraint, with judges acting to interpret the law only, and those on the other side who want activist judges who will respond to legal situations by imposing the current politically correct decision.

[Nathan Paul Mehrens is the Director of Research for a non-profit, grass roots lobbying organization in Washington, D.C.]

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