Select judges wisely, considering lawmaking role

While candidates for judge usually campaign as being “above politics,” as someone who will apply the law impartially without regard to personal beliefs and convictions, the reality is that judges make law. Voters need to recognize this judicial function as they decide their votes.

A recent paper by Kansas University School of Law Professor Stephen J. Ware (Originalism, Balanced Legal Realism and Judicial Selection: A Case Study) explains the role of judges. Ware’s paper is primarily concered with appellate courts, as that is where judges have the highest level of discretion. But the same principles apply to Kansas district court judges.

At issue is whether judges are simply arbitrators of the law, or actual participants in the lawmaking process. Ware explains: “This realist view that statutory interpretation often involves ‘substantial judicial discretion’ and therefore constitutes ‘judicial lawmaking, not lawfinding,’ had by the 1950s, ‘become deeply rooted.’”

A “‘balanced realism,’ to use Brian Tamanaha’s appealing label, recognizes both that judges’ policy preferences have little or no influence on many judicial decisions and that judges’ policy preferences have a significant influence on other judicial decisions. Empirical studies tend to support this balanced view.” In other words, there is some role for ideology in making judicial decisions. Politics, therefore, is involved. Ware quotes Charles Gardner Geyh: “In a post-realist age, the ideological orientation of judicial aspirants matters.” And the higher the court, the more this matters.

Ware concludes: “Yes, of course judges’ allegiance should be to the law, including our state and federal constitutions. But that allegiance does not ineluctably guide the judge to make a particular choice among various reasonable interpretations of a vague or ambiguous constitutional or statutory provision.” For more, see Kansas lawmakers, including judges, should be selected democratically.

So voters — when deciding which judges to elect to office or deciding whether to retain those already in office — need to consider politics and ideology, not just technical legal skills or promises to “unflinchingly apply the rule of law.” Voters should ask: Is the candidate likely to be a judge who would make decisions from a limited government perspective, or will the judge be favorably disposed to make decisions that expand the size and power of government?

While political party membership is a only a rough — and not entirely accurate — indication of the political philosophy of a candidate, it’s about all voters have. Most judicial candidates avoid any mention of politics in their campaign materials and websites. Some don’t even mention the party they belong to, even though the contests may be partisan.

Ware’s complete paper may be downloaded at no charge here.