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Friday, May 29, 2009

Chidren of the Cornyn

So I heard Sen. Cornyn on NPR last night criticizing Sotomayor's "that's where policy is made" gaffe (in the Kinsleyan sense of a pol accidentally saying something this both true and unsayable). Now, I won't cast aspersions on Cornyn--a former justice of the Texas supreme court!--but he must know that his line here, that judges shouldn't make policy but merely just apply the law, is complete bullshit. He certainly had to make some policy when he was on the Texas high court.

Don't believe me? Then check out Richard A. Posner--the GOP judge, mentioned for the Alito seat--specifically, chapter 8 of Overcoming Law: There has never been a time when the courts of the United States . . . have behaved consistently in accordance with this ideal. Nor could they, for reasons rooted in the nature of law and legal institutions, the limitations of human knowledge, and in the character of a political system.

OK, and now a list of instances of "judge-made policy" that conservatives like. We all know that "judge-made law" is always about abortion rights. But conservatives actually like some judge-made policy. (Btw, some of these doctrines are liked by liberals, too, in some circumstances. I'm not calling these "conservative," they're just doctrines that conservatives have tended to like, over time.)

Here's a partial list of legal doctrines that are based purely on case-law and have no statutory basis; to the extent they have constitutional basis, the Constitution leaves quite a bit to be filled in by the courts:

* Standing. Conservatives like the standing doctrine because it blocks liberal interest groups from litigating government policy. It's rooted in Article III, but I think it would be hard to get contemporary standing doctrine out of the words "cases" and "controversies." And standing is an important policy.

* State-secrets privilege.

* Executive privilege. Not mentioned in the Constitution at all, people. Inferred by--yes, you guessed it, the courts!--from the implications of the Constitution. I guess that it emanates in the penumbra or something.

* Substantive due process limits on punitive damage awards in state courts. This one may actually split conservatives--I think that Scalia, IIRC, thinks that this is nonsense on stilts (he may be right!). But certainly some conservatives like this one.

* State sovereign immunity, under the 11th amendment, against suits by the citizens of the same state. It may make sense, it may not--but it is clearly judge-made policy.

* Qualified immunity of state and federal officials from liability. This one is less politically prominent than the others, but this is a big one for litigation. The doctrine was, um, created in response to the flood of s. 1983 lawsuits post-1961. I am not aware of any statute on this at all.

I could go on. That's a partial list. The fact is that appellate judges make policy all the time. As Posner says, they have to. I don't even know why this is controversial.

Oh, yeah, I do. It's because one side of the debate insists on ignoring the reality and instead clings to an "ideal" that is impossible to comply with. And ends up talking to us like we're children.

I think I'm tuning out of the confirmation thing for awhile.


At 8:23 PM, Blogger ninophile said...

If you say so.

At 12:16 PM, Blogger tenaciousmcd said...

Nice post. I knew a few of those were judge-made (mostly the executive power issues, 11th am., etc.), but a few were new to me. Too bad our rare conservative commenter didn't feel like engaging on the topic. Typical.


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