Episode 53: Judges

On today's lesson: What does it take to become a judge? What does the job entail? Also, what are the schools of thought we hear about so much about in relation to Supreme Court justices: textualism, originalism, and the phrase, "the living constitution"?  Our guide is Behzad Mirhashem, from the University of New Hampshire School of Law.

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[Virginia Prescott] So big picture first what is the job of a judge?

[Behzad Mirhashem] Well in any legal case you have the basic problem of determining what the facts are and then applying the law to those facts. You know, somebody gets shot you have to determine the facts of who did it and what was their intention. Then you have to bring the law, say the law of murder, and apply to those facts. So the judges are always the ones who are figuring out what the law is, in certain cases they also decide the facts. Whereas other cases it's the jury that decides the facts. Now right now we're talking about trial judges. Then there are appellate judges whose job it is to review the decisions of lower level judges.

[VP] And then that goes all the way up to Supreme Court justices.

[BM] Right.

[VP] OK.

[BM] It all gets complicated because there's the state system and the federal system which are kind of parallel to each other.

[VP] Is the job of a judge laid out in the Constitution?

[BM] The judicial power is generally described in the federal Constitution as deciding cases or controversy so the idea is that judges should not be making abstract pronouncements but deciding concrete cases.

[VP] Based on the law.

[BM] Based on the law.

[VP] How does a judge become a judge?

[BM] As a practical matter all sorts of people have become judges. Certainly a lot of them have tended to go to more, more elite law schools like Harvard and Yale. A lot of them did a judicial clerkship working with the judge after finishing law school and then most of them either worked for a civil...large civil firm or as a federal prosecutor or as a state judge before becoming a federal judge.

[VP] How about a federal judge you know who appoints them?

[BM] The federal judges are generally nominated by the president and confirmed by the Senate. Now when the president is trying to decide who to nominate, obviously he has a lot of flexibility, there a lot of contenders out there. Generally the senators from the particular state in which the district for which a judge beats being selected have some significant say in the matter especially if the senators are from the same party as the president who's making the nomination.

[VP] What are the sort of skill sets that a good judge needs? A knowledge of the law certainly, but what else?

[BM] I mean a judge has to be a good legal analyst and also...especially federal judges...but in general especially appellate judges have to be good writers because one basic concept is that appellate judges have to explain how they reached a decision in writing in an opinion and trial judges often have to do that too. It's not enough for a judge to issue a decision saying, you know, there is a federal constitutional right to gay marriage. You want to know how the judge reached that conclusion.

[VP] How about some of the traditions, you know, the robes, the gavel, referring to a judge as your honor? Where did this come from and why are they still in place?

[BM] I think the traditions in American law, most of them can be traced back to you know English practice before independence. Why some of these things have lasted...the bottom line is I think the sense of formality sort of gives a judicial aura that encourages litigants to accept decisions as if they're, you know, handed down by a maybe a more than human force.

[VP] Yeah they are they're up on high, on this big bench and their big robes with the gavel. What about the judicial hierarchy or ranking of judges in terms of overturning decisions or rulings? You mentioned Superior Court so that must be a higher level than a regular trial court...state court.

[BM] There are trial courts so say taking the example of the federal system, there is one trial level court. It's the district court. New Hampshire has the United States District Court for the District of New Hampshire. Massachusetts has the United States District Court for the District of Massachusetts. Some larger states have multiple districts. Above those are the courts of appeals. So New Hampshire and Massachusetts are both in the first circuit. There are basically 11 geographical circuits, plus the D.C. Circuit which is the 12th, plus a federal circuit that hears certain specialized appeals.

[VP] I know that there are a lot of challenges for the contemporary judiciary that for one, case loads are building up in a lot of districts. Judges aren't able to handle them. Is there a shortage of American judges right now?

[BM] You know the judiciary has always been considered the weakest branch. They don't have a military and they don't have a control over their budget. You know ultimately it's the legislature that decides how much money to spend on judges. And so you know the legislature has to make these difficult decisions about more money for schools or more money for the judiciary.

[VP] So when we talk about judges and justices the ideas or especially with the Supreme Court justices these terms originalism, textualism, living constitution often come up, what do they mean for the interpretation of the law of the United States?

[BM] Well in a sense a fundamental problem for a judge is the interpretation of a statute or a constitutional provision. A criminal statute might say: a person is guilty of murder if he knowingly causes the death of another. So what does it mean to cause? Who counts as another? Does a fetus count as another? The judge has to interpret that text.

When you go beyond criminal law to say constitutional law, things can get a lot more complicated. You know, the first amendment basically guarantees that Congress shall make no law abridging the freedom of speech. So a judge has to interpret the phrase freedom of speech. You know, is making a video of an animal being tortured freedom of speech? Is spending money on a political campaign freedom of speech? These terms aren't self-defining so a judge has to decide how to interpret them.

One basic school which is certainly the dominant school with respect to statutory interpretation and possibly with respect to constitutional interpretation is the textualist school. You look at the words of the statute or the constitutional provision—

[VP] The actual text--

[BM]--and consider their ordinary meaning as those words were used at the time the provision was adopted.

[VP] So that 18th century writers of the Constitution didn't have a concept of videos and making videos of animals being tortured.

[BM] Right. I mean you always have that problem but more generally you know by freedom of speech did they only mean political speech or would it extend to other activities? You know they didn't have videos but they had newspapers. So the other school is, don't focus on the original understanding of the words so much as the original intention of the drafters. This is sort of an originalist intentionalist school as opposed to an originalist textualist school. You're still looking at what the framers intended. But you try to put yourself in their shoes as opposed to solely looking at their words. You know, it may be that there are sources of information other than the dictionary for trying to figure out what a particular phrase means.

A contrary approach would be the so-called living Constitution. That's a more flexible approach. Look at the purpose of the provision. Look at the practical pragmatic effects of interpreting it a certain way. Don't limit yourself to what just the term meant and what was intended hundreds of years ago. The other side would say, once you go down that path, where do you stop? 

[VP] Right. Right.

[BM] I mean there's a basic division between an originalist who is focused on what was the original understanding of say freedom of speech—

[VP] And Antonin Scalia may be our most famous example of recent originalist.

[BM] Right. Now, once you've decided you're an originalist you have to decide whether to limit yourself exclusively to the text and the common understanding of the meaning of that text at the time of its adoption or more broadly look at the intention of the framers. So an originalist interpretation of the eighth amendment's cruel and unusual punishment clause would say let's see what the word cruel means, what the word unusual means, and let's look at what was considered cruel and unusual at the time of the adoption of the Constitution. The alternative approach is to say look there are evolving standards of what is an acceptable form of punishment—

[VP] Right. Being drawn and quartered is not considered standard punishment anymore.

[BM] No longer acceptable. And to point out that if the Framers had a very specific intent in mind why would they use such broad words as freedom of speech and cruel and unusual punishment? What if they never intended for the judge today to so narrowly focus on their narrow intentions back then.

[VP] So following on that what does the living Constitution interpretation of cruel and unusual punishment?

[BM] So the living Constitution interpretation of cruel and unusual for example: is the death penalty cruel and unusual for children? Two cases that were decided recently was death penalty for juveniles violates the Eighth Amendment. Life in prison without the possibility of parole for juveniles a later case said violates the Eighth Amendment. So in those cases the court looked at the practices of the various states, the evolving understanding of say the juvenile brain, more controversially the practices of other countries and considering factors like that concluded that look, it may have been OK to execute a 13 year old back when the Constitution was adopted, it's not ok today.

Now of course the response to that is well if you don't think that's ok go persuade your legislature to change the law. And that's where the debate comes in you know because ultimately the Supreme Court is in a sense an anti-democratic institution to say that you can't execute juveniles is to take that power away from the state legislature. But of course you know the argument--the response to that is well you know we have a constitutional republic. If the idea was to just have majority rule on every issue all the time then the structure of the Constitution would not make a lot of sense.

[VP] So those are a couple of different strains in the American judiciary. But we also hear a lot about activist judges which an observer might say is any judge who reaches a decision that you don't necessarily agree with. Is there any possibility of true objectivity when interpreting American law?

[BM] That's a very controversial issue you know, on the one hand you have the originalists like Justice Scalia, Justice Thomas, being adamant that an objective interpretation limited to the original intention of the drafters is possible. On the other hand you look at decisions such as Second Amendment right to bear arms, First Amendment campaign finance spending. And you see that these judges who purport to focus on the original understanding have in fact reached decisions that judges hadn't reached for decades preceding their decision. So somehow they were able to decipher the original intent of the framers better than many other judges over the decades.

You know, there's a big controversy in the law in terms of does it even really make sense to think that the law is this abstract thing that's out there and the judge somehow reaches out and you know grasps it or is judicial decision making a more pragmatic and realistic kind of affair where judges are human beings and they consider the consequences of their decisions like everyone else.


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