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What Judges Do

Published: February 4, 2002

Legal Times
February 4, 2002

What Judges Do
By Mark Kozlowski

Should the Senate be concerned with the personal ideological views of federal judicial nominees? Conservatives say no. A proper judge qua judge, they assert, has no personal ideological views. A legislator may have such views, but not a judge. Thus, when President George W. Bush announced his initial batch of judicial nominees last May, he vowed: “Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench.”

Whenever conservatives talk about the courts, the prohibition against “legislating from the bench” gets mentioned sooner or later. The idea is that, although judges must determine the meaning of statutes, the only legitimate elements to be considered are the words of the statute and the intent of the legislature in employing those words. Similarly, when called upon to interpret a provision of the Constitution, conservatives contend that the only proper guide, beyond the text itself, is the intention of those who composed and ratified the provision.

To do otherwise, conservatives assert, turns the judge into a creator of law. With regard to ordinary statutes, so the argument goes, this violates the principle of separation of powers. As for the Constitution, when interpretation looks beyond text and intent, the meaning of our fundamental law comes to depend upon the will of individual judges.

What is more, conservatives frequently declare that this stark distinction between proper interpretation and “legislating from the bench” is precisely the way our Founders viewed the task of judging. Consider the testimony of Douglas Kmiec, law school dean at the Catholic University of America, during last year’s Senate Judiciary Committee hearings on whether a judicial nominee’s political ideology should play any role in the Senate’s confirmation decision.

Kmiec noted that the Anti-Federalists, who opposed ratifying the Constitution, were very concerned about how much discretion judges might exercise. Kmiec asserted that Alexander Hamilton “responded to this criticism by emphasizing that it was not the job of judges to make law, that their role under the Constitution was simply to enforce the Constitution and laws as they were written.” Under the principle of separation of powers, “lawmaking was left to the legislature and the people themselves.”

To remain true to the Founders’ vision, Kmiec declared, the Senate should not endeavor to discern a nominee’s ideology. On the contrary, any nominee who suggested that ideology may influence the work of statutory or constitutional adjudication should be rejected. Kmiec concluded that, after determining that a nominee possesses the requisite professional qualifications, Senate inquiry should be limited to discerning “whether the nominees coming before you are willing20to abide by the text of statutory law as you have authored it.”

But did the Founders actually believe that statutory and constitutional interpretation could be reduced to a nondiscretionary exercise of following text and discerning intent? As is usually the case when one fully engages the thought of those men, things turn out to be a good deal more complex.


Begin with language itself. If you read only our most prominent journals of conservative thought, you might conclude that the idea that “meaning” is often indeterminate is a recent invention of deconstructionist literary critics. In fact, the Founders embraced the very same notion. Here is James Madison writing in The Federalist:

“[N]o language is so copious as to supply words and phrases for every complex idea, or so correct as not to include many equivocally denoting different ideas. Hence it must happen that however accurately the objects may be discriminated in themselves, and however accurately the discrimination may be considered, the definition may be rendered inaccurate by an inaccuracy of the terms in which it is delivered. … When the Almighty himself condescends to address mankind in their own language, his meaning, luminous as it must be, is rendered dim and doubtful through the cloudy medium through which it is communicated.”

During the constitutional ratification20debates, future Chief Justice Oliver Ellsworth made the same point more succinctly: “The charge of being ambiguous and indefinite may be brought against every human composition, and necessarily arises from the imperfection of language.”

If language in general is often indeterminate, we can expect that statutory and constitutional language will often be indeterminate too. And Professor Kmiec is quite correct that the Anti-Federalists were troubled that indeterminancy of language would allow for discretion in judging. But the supporters of the Constitution took some pains not to deny this. Hamilton voiced no alarm in The Federalist when he noted, “We often see not only different courts but judges of the same court differing from each other.”


Take first the case of statutory interpretation. Within proper bounds, the Founders believed that judicial interpretation was an extension of the legislative process itself. Madison made the point thus: “All new laws, though penned with the greatest technical skill and passed on the fullest and most mature deliberation, are considered more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications.” And Hamilton wrote: “Laws are a dead letter without courts to expound and define their true meaning and operation.”

What is more, the Founders explicitly asserted that20sometimes a judge would be justified in ignoring legislative intent. They fully expected that there would be occasions when a legislature, yielding to the passions of the moment or corrupt influence, would pass unjust laws. Then it would be proper for a judge to disregard legislative intent in favor of equity.

Thus, Hamilton said in The Federalist, legislatures might enact constitutional laws that were nevertheless “unjust and partial” in operation. In such cases, “the firmness of the judicial magistracy is of vast importance in mitigating the severity and confining the operation of such laws.” Even some Anti-Federalists spoke highly of this practice. One writer praised New York judges for their willingness to construe an unjust statute in a manner that “I will not say evaded the law, but so limited it in its operation as to work the least possible injustice.”

None of this is to say that the Founders favored judges who unrestrainedly imposed their personal beliefs upon the law. But as Yale law professor William Eskridge argued in a brilliant article in last June’s Columbia Law Review, the Founders embraced “an eclectic approach to statutory interpretation, open to understanding the letter of a statute in pursuance of the spirit of the law and in light of fundamental values. Furthermore, [they] expected judges certainly to trim the letter of the law to protect common law liberties and probably sometimes to expand the letter of the law to unprovided-for cases.”


With regard to the Constitution itself, the Founders were emphatic that its language was necessarily broad and indeterminate. Why, the Anti-Federalists wanted to know, did the Constitution not list precisely every act that Congress could perform? This would be most unwise, Hamilton replied:

“Nothing … can be more fallacious than to infer the extent of any power proper to be lodged in the national government from an estimate of immediate necessities. There ought to be a CAPACITY to provide for future contingencies as they may happen; and as these are illimitable in their nature, so it is impossible safely to limit that capacity.”

But if the powers of Congress cannot be precisely defined, how will we know when Congress has gone too far? Speaking specifically to the question of division of powers between Congress and the states, Madison said that there would be legitimate disagreement about the Constitution’s meaning because judgments about the proper spheres of state and federal authority would not be “free from different constructions by different interests, or even from ambiguity in the judgment of the impartial.” In other words, constitutional interpretation could not be reduced to an exact science.

In The Federalist itself, Hamilton noted that the Constitution’s terms regarding the extent of federal court jurisdiction were subject to at least two interpretations. He then argued in favor of “the most natural and the most defensible construction.” He pointedly did not assert that he was positing the single correct construction.

What does this mean for the debates over President Bush’s judicial nominees? Contrary to Professor Kmiec, the Senate would be truer to the Founders if it expected more of judicial nominees than a pledge to interpret solely through text and intent. The Senate should understand, as did the Founders, that because of imprecise language, unclear intent, unforeseeable developments, and the capacity of legislatures to be swayed, the task of interpretation will inevitably demand a judge’s discretion.

This is not to contend that nominees should be asked how they will rule in a particular case or cases. But it is proper to ask whether a nominee acknowledges the inevitability of discretion, as opposed to asserting that all cases can be judged based solely on the will of the lawmakers. Further, it is proper to ask how a nominee intends to exercise this discretion. If one wishes to call this an inquiry into the nominee’s ideology, fine. There is more than a little evidence that the Founders would expect as much.

Mark Kozlowski is an associate counsel at New York University School of Law’s Brennan Center for Justice.