Judicial Activism, Judges' Speech, and Merit Selection: Conventional Wisdom and Nonsense

Article excerpt

OPENING REMARKS

Thank you very much Ms. Noelle Lagueux-Alvarez, this year's Symposium Editor for the Albany Law Review. It is an honor to be the Faculty Advisor to the Law Review. As many of you already know, this Law Review is ranked within the top five percent of all the law journals in the country. (1) In a recent comprehensive study of over 900 legal publications nationwide, the Albany Law Review was ranked number thirty-four. That ranking puts this Law Review in the class with Harvard's, Yale's, Stanford's, and the law review's of other schools that are almost as good as Albany Law School.

The reason for that ranking is that the Albany Law Review is apparently one of the most cited and relied upon law journals in the country. In turn, the primary reason for that, of course, is that the students on the Albany Law Review are an extraordinary group.

Among the things that the law review students do each year is to organize and publish a symposium. Noelle already mentioned the one last year on the meaning and use of torture; (2) we had one two years ago on "manufactured humanity"; (3) in prior years we had one on the concept of violence in international law, (4) and another one on gay, lesbian and transgender rights. (5) The Albany Law Review has consistently produced symposia addressing issues that are extraordinarily important, provocative, and at the forefront of current legal, social, and political developments.

Today, the symposium topic is Issues Facing the Judiciary. Well, of course, that's the world. We have narrowed the topic to three specific areas of focus: judicial activism, the First Amendment rights of judges, and judicial selection. Judge Richard C. Wesley of the Second Circuit had to cancel his appearance as one of our panelists. To compensate for his absence, I have been asked to expand my remarks a bit. I would say that I will try to fill in for Judge Wesley, except that what I say today is not likely to be what he would say if he were here. In any event, welcome to all of you.

APPEALING PROPOSITIONS

Presumably, when we speak of judicial activism, we mean something as opposed to restraint exercised by courts and judges--whether that restraint be deference to the other more democratic and political branches; whether it be standing by precedent; or whether it be narrowly or strictly construing statutory and constitutional provisions. (6) When we speak of the First Amendment rights of judges, we are referring to the speech and expressive activities which traditionally have been forbidden to judges. (7) When we speak of judicial selection, we are talking about the questions regarding the right and wrong ways, the better and worse ways, of selecting individuals for the judicial role. (8)

The common wisdom--and the "company line"--with regard to the first topic, judicial activism, is that it is illegitimate, that it is an abuse of judicial power, and that a strict self-restraint is much more appropriate for the judicial role in a constitutional democracy. (9) With regard to the second topic, judges' speech, the common view is that judges and judicial candidates should avoid any political and legal expression and expressive activities, particularly about the issues of the day; those holding judicial office must preserve the appearance of neutrality, impartiality, and objectivity. (10) With regard to the third topic, selection, the widely accepted notion is that judges are better selected by some merit system of appointment, rather than by popular election. This is necessary in order to reduce partisan politics and to enhance the quality of the bench; moreover, the people do not really understand the role played by judges anyway. (11)

All of these propositions are clear, unambiguous, and appealing. Unfortunately, they are all much more apparent than actually true.

These presumptions--which seem somewhat nauseatingly repeated--are, at best, superficial and misleading. …