20 Jul 2005 Congressional Action: What Judges Do

On July 20, Senator Orrin Hatch, in a floor speech about the nomination of Judge John Roberts to the U.S. Supreme Court, discussed the role of judges:

An effective process for hiring or selecting someone to fill a position, any position, must start with an accurate description of that position. I am reminded of a 1998 article by Judge Harry Edwards appointed in 1980 by President Jimmy Carter to the U.S. Court of Appeals for the DC Circuit. I was in this body at the time. He was that court’s chief judge from 1994 to 2001 and a colleague of Judge Roberts. Judge Edwards warned that giving the public a distorted view of what judges do is bad for both the judiciary and the rule of law.The debate about judicial selection is a debate about what judges do, about their proper place in our system of representative government. Getting the judicial job description right is necessary for a legitimate and effective selection process. It defines the qualifications for the job. It identifies the criteria we should apply. It guides the questions that may properly be asked and answered and the conclusions that should be reached.

Judges take law that they did not make and cannot change, determine what it means, and apply it to the facts of a legal dispute. That is what judges do. That judicial job description applies across the board. It does not depend on the parties or the issues before the court. It does not depend on the law that is involved in a particular case. And it certainly does not depend on which side wins or should win.

I believe we must help our fellow citizens better understand what judges do so they can better evaluate what we will be doing in the weeks ahead as we consider this nomination now before us.

Without in any way trivializing the work of judges, I want to use a practical example because I believe it can be simple without being simplistic.

Judges are like umpires or referees. They are neutral officials who take rules they did not make and cannot change and apply those rules to a contest between two parties or multiple parties.

How would we evaluate the performance of an umpire or referee? Would we say he or she did a good job as long as our favorite team won the game? If we were hiring an umpire or referee, would we grill him or her about which side he or she were likely to favor in the upcoming matches? Of course not.

Desirable results neither justify an umpire or referee twisting the rules during the game nor are automatic proof that the umpire or referee is fair and impartial. Umpires and referees must be fair and impartial from beginning to end during the contest before them. They do not pick the winner before the game starts, nor do they manipulate the process along the way to produce the winner they want.

In the same way, we must not evaluate judges solely by whether we like their decisions or whether their decisions favor a particular political agenda. The political ends do not justify the judicial means.

This is a very important point, something we must keep in clear focus throughout the weeks ahead.

Note: “Congressional Action” is a blog feature highlighting an official activity undertaken by or in Congress, very often chosen at random, to provide an educational snapshot of our Congress at work. Opinions and facts represented in this feature do not necessarily represent the views of Amy Ridenour or The National Center for Public Policy Research, nor is this feature intended to express an opinion on any measure under consideration by the Congress.