{"id":4164,"date":"2005-10-18T18:56:54","date_gmt":"2005-10-18T22:56:54","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2005\/10\/18\/pols-judges-the-roles-are-dif"},"modified":"2011-08-05T14:54:29","modified_gmt":"2011-08-05T18:54:29","slug":"pols-judges-the-roles-are-different-lisa","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2005\/10\/18\/pols-judges-the-roles-are-different-lisa\/","title":{"rendered":"pols & judges: the roles are different, Lisa"},"content":{"rendered":"

<\/a><\/p>\n

\n

Lisa Stone recently reminded us that she’s “no attorney<\/A>.”  But, <\/FONT><\/DIV>
\n
she <\/FONT>certainly does cyber-hang with a lot of them at the Law.com <\/FONT><\/DIV>
\n
Weblog Network<\/FONT><\/A>.  Would one of them please explain to her why <\/FONT><\/DIV><\/FONT>
\n

\n
\"fjudgeS\" a judge<\/FONT><\/DIV>
\n
<\/FONT> <\/DIV>
\n
just might — appropriately<\/EM> — have a different opinion<\/FONT><\/DIV>
\n
on an issue [or the outcome of the judicial or legislative <\/FONT><\/DIV>
\n
process relating to that issue] than he or she has as a <\/FONT><\/DIV>
\n
private citizen or as<\/FONT><\/DIV>
\n
<\/FONT> <\/DIV>
\n
                                                                   a politician “Vote neg” .<\/FONT><\/DIV>
\n
<\/FONT> <\/DIV>
\n
Therefore, despite Lisa’s post<\/A> today, we cannot and should <\/EM><\/FONT><\/DIV>
\n
not<\/EM> know how Harriet Miers <\/FONT>would vote when presented with <\/FONT><\/DIV>
\n
abortion-related issues, <\/FONT>simply by knowing her stance as a <\/FONT><\/DIV>
\n
politician in 1989. (See, <\/FONT><\/FONT>e.g<\/EM>., <\/FONT>A Matter of Interpretation<\/FONT><\/EM><\/A>, by<\/FONT><\/FONT><\/DIV>
\n
Antonin Scalia<\/FONT>, 1987; cf.,<\/EM> The <\/FONT><\/A><\/EM><\/FONT>Federalist Papers<\/FONT><\/A>.<\/EM>)<\/FONT><\/FONT><\/DIV>
\n
<\/SPAN><\/FONT> <\/DIV>
\n
update<\/FONT><\/STRONG><\/EM> (9:30 PM):  Lisa has added this to her post, in response<\/SPAN><\/FONT><\/DIV>
\n
to my above complaint:<\/SPAN><\/FONT><\/DIV>
\n

\n
“Updated graph: Sorry, but I think the selling of this <\/SPAN><\/FONT><\/DIV>
\n
particular candidate in the past week–both over and <\/SPAN><\/FONT><\/DIV>
\n
under-the-counter–makes this appropriate distinction <\/SPAN><\/FONT><\/DIV>
\n
of roles (so appropriate-sounding<\/EM> with the nomination <\/SPAN><\/FONT><\/DIV>
\n
of Roberts, who worked for Reagan and then served <\/SPAN><\/FONT><\/DIV>
\n
as a judge) sound disingenuous where Miers is concerned. “<\/SPAN><\/FONT><\/DIV><\/BLOCKQUOTE>
\n
I just emailed Lisa, saying that making the distinction is the only <\/SPAN><\/FONT><\/DIV>
\n
appropriate<\/EM> reply that the White House or any other interested <\/SPAN><\/FONT><\/DIV>
\n
parties should be making, and adding: “We shouldn’t expect<\/EM> a direct <\/SPAN><\/FONT><\/DIV>
\n
answer to the abortion question, even at the nomination hearings.   <\/SPAN><\/FONT><\/DIV>
\n
Your take on this in today’s post sounds more like a journalist trying <\/SPAN><\/FONT><\/DIV>
\n
to create<\/EM> a controversy than one trying to help explain<\/EM> an important <\/SPAN><\/FONT><\/DIV>
\n
public issue.”  <\/SPAN><\/FONT><\/DIV>
\n
<\/SPAN><\/FONT> <\/DIV>
\n
update<\/FONT><\/EM><\/STRONG> (Oct. 19, 2005): Steve Bainbridge made my point nicely<\/SPAN><\/FONT><\/DIV>
\n
today, in a post titled “Will She or Won’t She?<\/A>“:<\/SPAN><\/FONT><\/DIV>
\n

\n
“I start with the hope that Miers’ 1989 statement does not <\/SPAN><\/FONT><\/DIV>
\n
tell us how she will rule. In my book (or, more precisely, <\/SPAN><\/FONT><\/DIV>
\n
my article), judges are not supposed to decide cases <\/SPAN><\/FONT><\/DIV>
\n
based on personal political policy preferences. They are <\/SPAN><\/FONT><\/DIV>
\n
supposed to try to figure out what the law is, which in the <\/SPAN><\/FONT><\/DIV>
\n
case of Roe<\/EM> means looking at the text of the Constitution, <\/SPAN><\/FONT><\/DIV>
\n
the intent of the framers, and the traditions of our country <\/SPAN><\/FONT><\/DIV>
\n
(i.e., originalism, textualism, and traditionalism). One thus <\/SPAN><\/FONT><\/DIV>
\n
can readily imagine a judge who would vote to support a <\/SPAN><\/FONT><\/DIV>
\n
state ban on abortions and then turn around and, in his <\/SPAN><\/FONT><\/DIV>
\n
capacity as a judge, strike that very same law down because <\/SPAN><\/FONT><\/DIV>
\n
the judge believes stare decisis<\/EM> requires him or her to adhere <\/SPAN><\/FONT><\/DIV>
\n
to Roe<\/EM>.”<\/SPAN><\/FONT><\/DIV><\/BLOCKQUOTE>
\n
<\/FONT> <\/DIV>
\n

\n