‘Bama Columnist Gets It Wrong
September 17, 2008
In Alabama, David Prather, a columnist for The Huntsville Times, today makes fun of the current Supreme Court campaign in that state.
Alabama preserves the rule that judges running for election may not promise how they would rule in specific cases. The reason for this is obvious: we want judges who will decide cases impartially once they hear them, not decide cases in advance and not promise favorable rulings in exchange for support (whether from the voters or a “merit” selection commission). But Prather criticizes judicial elections as an “essentially inane process” that provides “no information” for voters.
Nonsense. There’s plenty of information for voters to consider: how judges have already ruled in cases, for instance. This gives the voters a sense of an individual judge’s judicial temperament. Mr. Prather, please call your assignment editor: It’s the job of newspapers like The Huntsville Times to cover the courts and to get information on judges’ decisions out to voters, just as they cover the legislature or the governor.
Next, Prather writes,
“When you get to the state Supreme Court level, justices are constantly having to determine what a law means. By doing that, they are, in effect, interpreting legislation. That interpretation becomes law. In other words, the job description of a Supreme Court justice is legislating from the bench.”
Prather couldn’t be more wrong.
Interpreting a statute isn’t the same as legislating it. As Chief Justice John Marshall famously wrote (in Marbury v. Madison), “It is emphatically the province and duty of the judicial department to say what the law is.” If, for example, the judiciary declares a law unconstitutional, the court sends it back to the legislature for reconsideration. The court does not write a new law, merely overturns an old one.
Judges aren’t writing new statutes every time they decide about the validity of a contract or a will or when they rule whether a particular party is at fault in a car accident.
So it’s not the judge’s role to legislate from the bench.
If Prather wants a judge who legislates from the bench, who gets up every morning with a passion to remake the world in his or her image without regard to what the legislature or other judges have decided, he can vote for one. If a majority of his fellow citizens agree, he’ll get one.
That’s why Alabama wisely preserves judicial elections.
Posted by Dan Pero in the categories: Alabama, Judicial Elections
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