As our recent foray in poetry suggests, the 1 L rite of passage that is the Appellate Brief is now finished. Oral Arguments are next, followed by exams, and then I, for one, am going to collapse into a heap.
Other than exhaustion and caffeine addiction, one of things that I find most amazing about law school is that it gives you new insight into the way our society functions. Take for example this appellate brief. Our problem focused on a wrongful discharge case under the ADEA, and was set in the 5th Circuit. In doing the type of exhaustive research required for such an undertaking, you’re able to see the development of the interpretation of the law over time. Specifically, you are able to see how the appointment of jurists with a particular judicial philosophy can really shape public policy.
Regardless of where you fall on the political spectrum, it’s kind of scary to think about judges being access points for the promotion of a political ideology. A judge’s position on abortion has been a major point of contention for his appointment to the Supreme Court for years. There are however many areas of the law (e.g. employment litigation) where a judge can have a far more substantive impact on everyday life. Just look at a case like Kelo v. City of New London to see what I mean.
While it may seem naïve, all this has really opened my eyes to the argument that a political candidate is only as important as the type of judges they appoint. A good lesson for an election year.
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I think you could have kept going with this line of thought, my good doctor….how about weighing in with your two cents as to which types of judges do you prefer? Are they both equally as bad? Do we really want judges who, at least in terms of federal judges, were never elected and have life tenure (the double whammy of no accountability) setting public policy in what we claim to be a default majority?
Abortion is a perfect example….i think most of our generation agrees that a woman should have the right to make such a decision herself….but does that make Roe and Casey correct? Remember, the issue there was not whether abortion should be legal or not…the issue was essentially whether we should leave the decision to the public or to 9 unelected government employees
and what about Kelo? That was 5-4, right? Was that rightly decided? Who dissented in that case anyways….
It’s funny, because I feel two ways about it. On one hand, I find the notion of judges who are not beholden to the political process interpreting the law to be a comforting one. If the Federal Bench looked the House of Representatives, I’d move to Canada. Can you imagine the chaos? Interpreting law in one way in an election year to attempt to curry favor with the electorate, in accordance with principle or best legal scholarship thereafter? It would be a disaster.
On the other hand, the notion of a class of Mandarins making decisions in a vacuum ticks me off. Especially when you find them using expansive interpretations to do things the legislator never intended (Kelo) or applying a strict interpretation to chop out legislation they don’t like (Medtronic).
What really creeps me out however is that they have – for all purposes – become elected. Depending on which party you vote for, you know with reasonable certainty what kind of judges they are going to appoint, and what their judicial philosophy is going to result in.