• Allowing subpoenas to be used to permit the inspection of premises in the possession of a third party (Premises in the custody or control of a party to the litigation already may be inspected under Rule 34.);
• Allowing attorneys licensed in Kentucky to issue subpoenas as an officer of the court (Currently, subpoenas may only be issued by the Circuit Court Clerk.); and
• Allowing subpoenas to be used to compel the production of documents and tangible things, without the necessity of filing a notice to take the deposition of the third party in possession of the documents or things (The current rule only allows use of subpoenas to compel the production of documents to a court hearing, trial, or deposition - thus requiring the "legal fiction" of noticing the custodian's deposition, providing a certification form to the custodian so he or she may certify the records in advance of the deposition date, and then cancelling the deposition once the documents are received. The proposed change to the Civil Rules will eliminate these legal gymnastics.).

1. The Constitution of the United States (1787) and the ratification debates (1787-1788).

2. The Declaration of Independence (1776).

3. The Bill of Rights (1791-1792).

4. The Articles of Confederation (1777).

5. The Ordinance of 1787: the Northwest Territorial Government.

Vindicating Vioxx
May 31, 2008

 

Texas and New Jersey may have different political cultures, but appeals courts in both states this week delivered a one-two punch to the liability suits against Merck for its Vioxx painkiller. In Texas, a court overturned a $26 million 2005 jury verdict against the drug company, while New Jersey's court whittled down an earlier verdict to exonerate Merck from a finding of consumer fraud and eliminate punitive damages.

 

***

 

(To read the entire article, click on the headline, above.)

It was sunny in Tennessee last week, when the state's controversial method of picking judges was allowed to expire amid high-stakes legislative wrangling. The change marks the first time a merit selection plan has been ousted in any state that has adopted it.

 

***

 

The Tennessee plan was devised to reduce the role of politics in judicial selection. But as the political drama surrounding it amply demonstrated, the reality has been anything but nonpartisan. Tennessee now has a chance to restore transparency and accountability to judicial nominations – and to show other states the way.

Former Supreme Court Justice Sandra Day O'Connor said Wednesday that she has grown weary of partisan attacks on judges, criticisms that she believes are causing citizens to lose faith in the judicial system.

***

O'Connor, 77, said she finds troubling the "increased number of attack on judges that are coming out of the halls of Congress and out of state legislatures across the country." Single-issue advocacy groups are tagging judges with labels such as "activist judges" or "godless, secular humanists" to win passage of propositions or amendments to state constitutions, she said.

"The founders of our country did not intend that Congress or the legislative branch dictate results in specific cases," O'Connor said. "I think we're hearing more criticisms about judges than I've heard in my very long lifetime."

(H/t How Appealing)

Of course, the venerable Justice ignores the fact that some of the harshest criticisms of the judiciary come in the form of dissenting opinions from fellow judges. But she seems to be most concerned that our elected representatives in Congress or state legislatures dare share the sentiments of those dissenting opinions. And of course, she sets up a straw man because those “propositions or amendments to state constitutions” she decries went down in flames in last November’s elections. (And don’t think that it is the conservatives who want judicial nominees to state in advance the kinds of decisions they will render in specific cases; just ask Ted Kennedy.)

As a rebuttal to Justice O’Connor, a few observations about the role of the judiciary are in order. For these, you may thank Alexander Hamilton (Federalist No. 78):

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.

***

It can be of no weight to say that the courts, on the pretense of a repugnancy, may substitute their own pleasure to the constitutional intentions of the legislature. This might as well happen in the case of two contradictory statutes; or it might as well happen in every adjudication upon any single statute. The courts must declare the sense of the law; and if they should be disposed to exercise WILL instead of JUDGMENT, the consequence would equally be the substitution of their pleasure to that of the legislative body. The observation, if it prove any thing, would prove that there ought to be no judges distinct from that body.

When judges substitute their will for that of the people or the people’s elected representatives in the Legislative or Executive branches, they justly deserve the verbal attacks propounded to them by their critics. They deserve the condescension, the criticism, and the dissent of the public. So long as those “attacks” that Justice O’Connor decries are mere philosophical criticisms (as opposed to physical – and criminal – assaults), they are the legitimate expression of dissent by a people who long ago threw off the shackles of oligarchy. Justice O’Connor and other judicial elites just don’t get it.

“I submit that the independence of the federal judiciary today is as secure as ever. The current criticisms of the judiciary are relatively mild and on balance a benefit to the judiciary,” Pryor said. Although there have been times in American history where judicial independence has been threatened, he added, now is not one of them.

Judicial independence, Pryor described, can be viewed in two parts; decisional independence and institutional independence. The ability of judges to decide cases impartially based on the facts and law represents the decisional component, while institutional independence, the ability of the judiciary to protect its institutional integrity, characterizes the other part. “As scholars have described this arrangement, we have both independent judges and a dependent judiciary,” he said.

***

Pryor concluded his talk with this thought: “We must depend on the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way we have the foremost responsibility of safeguarding our independence.”

(h/t ConfirmThem)

By way of background, the Senior Status Program was created by the General Assembly in 2000, and is currently codified at KRS 21.580. It was designed by the legislature with the stated intent to “combat backlog and delay in Kentucky courts.” In exchange for the Kentucky State Treasury providing increased retirement benefits, a “retired” judge may elect within 90 days of “retirement” to serve without additional compensation as a Special Judge for 600 days over the following 5 years. (I enclose “retired” and “retirement” in quotation marks, because the increased retirement benefits have also been made available to judges who failed in their most recent attempt at re-election. Apparently, “retirement” for these purposes includes an involuntary termination of employment by a majority of the electorate. I wonder if being a Kentucky state judge is the only occupation in which you can be fired by your boss and still receive a bonus because of the “benefit” you bring to your employer. But that is another issue.)

We are told by Judge Billingsley that this is a good deal for the taxpayer – he says the 45 retired judges cost the state $1.5 million per year, as opposed to the $13.5 million that creating 45 new permanent judgeships would cost. The current program is set to expire on July 1, 2007. (I know, Judge Billingsley insists in his article that the program expires – due to 2002 and 2003 amendments to the statute – in 2009. Even if I agreed with Judge Billingsley that the amendments to the law in 2002 and 2003 extended the life of the law to 2009 – which, upon reading the text of KRS 21.580 as it exists today, I do not – it is apparent that the repeal would take precedence over the amendments per KRS 446.260. The repeal of KRS 21.580, effective July 1, 2007, has itself not been repealed.) I do not know if Judge Billingsley’s math is correct as to the cost savings associated with the Senior Judge program, though I have my doubts, but I will assume for purposes of this discussion that he is correct.

While I have not decided myself whether I think the Senior Judge Program is a good idea, or whether the amendment to the program would make it more or less palatable, I think a candid assessment of the program by different people could lead to different conclusions about the program’s merit. For example, the Supreme Court told us in Kuprion v. Fitzgerald that the appointment of a Special Judge by the Chief Justice does not create a new judgeship where there was not one before; Special Judges so appointed must serve in an existing division of the District Court, Circuit Court, or Court of Appeals. Practically speaking, a Special Judge does not serve in a courtroom that is his alone; he serves in an existing courtroom when the judge who normally presides there is absent, sick, on vacation, or the like. Kentucky law, even without the Senior Judge Program, allows an appointment of a Special Judge to fill the occasional vacancy caused by the absence of the regular incumbent judge – see KRS 26A.020 and KRS 21A.110.

So perhaps a rational State Senator – whether or not you and I agree with his analysis – could come to the conclusion that no real violence is done to due process or judicial efficiency by not extending the Senior Judge Program beyond July 1, 2007. After all, KRS 26A.020 and Section 110 of the Kentucky Constitution still provide for active or retired judges to be appointed by the Chief Justice to serve as Special Judges if the need arises. Considering the unfunded liabilities currently existing in the teachers’ and state employees’ retirement programs, as well as many legislators’ stated preference to wait until the 2008 “long” session of the General Assembly to address such matters, it would not be irrational in the least to decide to consider the extension of a retirement bonus program for “retired” judges at the same time the legislature will consider the changes needed to the other state retirement programs. And doing so is no evidence of spite, ill will, or an imagined slap at judicial independence. It is just as much, or more, evidence of a judgment that it would be better to save $1.5 million in the next year.

Citing rumors of “bad blood” between the Senate President and the Chief Justice of the Kentucky Supreme Court, Judge Billingsley characterizes the Senate’s refusal to pass this bill as both a “payback attack” and “an attack on the independence of the judiciary.” Of course, such wild speculation and hearsay, without additional proof, would most likely never have been admissible in Judge Billingsley’s courtroom. But, unfortunately, the Rules of Evidence do not apply to the blogosphere.

“Attacking the independence of the judiciary,” has become the battle cry of the judicial elites throughout the land. For example, last fall I discussed briefly an op-ed in the Wall Street Journal written by retired U.S. Supreme Court Justice Sandra Day O’Connor, in which she equated criticism of judicial opinions with a threat to “judicial independence.” Now, not only speaking out against an activist judicial opinion with which one disagrees, but according to Judge Billingsley, a state legislature’s failing to enact an extension of a law that provides bonuses to retired judges, threatens “judicial independence.” (Remember, the State Senate is not voting to take away all retirement benefits for judges; it is simply not extending a bonus program for 45 former judges.)

Apparently, “attacking the independence of the judiciary” now means whatever a disgruntled judge, or former judge, wants it to mean. But whatever this phrase may mean, it is used in a conclusory fashion and with the intent of stifling, and not fostering, debate about the merits of the issue. The appropriation of money and making decisions concerning the use of state funds has always been a quintessentially legislative function. But now, a legislative body that chooses a course of action (or inaction) in these areas that is different from a retired judge’s personal policy preferences is pilloried as wrongfully “pressuring” or even somehow attacking judges. This is a savage butchery of the English language, but the most important thing being sacrificed on the altar of “judicial independence” is a substantive debate.

UPDATE: I have added a link to the most recent issue of State Court Docket Watch, so you can now read the article online.

************
I have been published in the January 2007 edition of State Court Docket Watch, a magazine of the Federalist Society for Law & Public Policy Studies’ State Courts Project. I received my copy in today’s mail, as did (or so I am told) all state court judges in all 50 states.

My brief article, “Carey v. Wolnitzek and the Future of Kentucky Judicial Elections,” is available here. It is basically a “case note” on the Carey case – it discusses what the Court held, what the Court’s reasoning was, etc. – and is not of an editorial nature.

If you have not yet received a copy of this edition of State Court Docket Watch and would like one, I am sure that the Federalist Society would not mind if you contact them directly to request a copy. (Sorry, this author wasn’t given a stack of my own to hand out!)

Noble is quoted as saying:

"It is real easy, from an academic standpoint, to get all caught up in ideas, and labels and positions, and never think about the fact that that case belongs to real people," Noble said.

It seems unfortunate that Judge Noble criticizes those who “get all caught up in ideas,” as if having ideas are a bad thing and a modest judicial philosophy devoted to enforcing the original meaning of legal texts is a danger to the rights of the Commonwealth’s citizens.

These dangerous “ideas,” such as judicial modesty, restraint, and the humility to subordinate one’s notions of what the law should be in favor of what the law is, are incompatible with Judge Noble’s apparent view that judges know best. While Noble may be correct that “that case belongs to real people,” she misses the larger point – that the law belongs to all of the Commonwealth’s citizens, not just those before her bench on any given day.

While the old adage may be, “You can’t beat something with nothing,” that does not stop the critics of originalism and textualism. There is not a single unifying theory put forward by any of the critics of Scalia’s and Roach’s jurisprudence, and they do not have one to offer. Scalia and Roach look to the text of the Constitution and the laws as enacted by the legislature, and attempt to interpret the law in light of what those who drafted, enacted, and ratified the law believed they were saying. In sum, according to Scalia and Roach, words mean things, as they are the (albeit, imperfect) expression of ideas – not the ideas of judges, but the ideas of legislators and ratifiers. Therefore, according to the originalist or textualist judge, the words used by the legislature in enacting our public policy should say what they mean and mean what they say, and are interpreted accordingly.

On the other hand, jurists like Noble tend to have an inflated view of their own ideas as to what is just under the circumstances. They eschew “ideas” and judicial philosophies that restrain the judiciary to implementing the public policies enacted by the people’s representatives. They believe that they, the enlightened judiciary, have ideas and concepts of justice far superior to those embraced by the popularly elected legislature and the Framers of our constitutions. They have no unifying theory of judicial philosophy because they seek only to implement their own ideas of what the law should be in the circumstances. But rather than defend this concept of the judges’ role in our governmental system, they simply impugn the modest philosophy embraced by judges like Scalia and Roach in an effort to score cheap political points and distract voters from their philosophical sleight of hand.

To be sure, I do not doubt that Noble and other judges of her stripe sincerely believe that they are seeking to do good, promote justice, and better our jurisprudence. But they do so by sacrificing a stable and anchored jurisprudence, faithful to the ideas and intentions of the legislators and framers. They instead offer us an unstable and unmoored jurisprudence that changes with their individual tastes over time. In their effort to do what they see as “justice” under the circumstances in a given case, they do great harm to the rule of law, which belongs to all of us.

As Justice Scalia has said so succinctly,

"The more your courts become policy-makers, the less sense it makes to have them entirely independent."

The Third Branch is now embroiled in a jurisprudential crisis. Their independence is in jeopardy – not by expensive judicial campaigns, criticism of their decisions, or by judicial candidates soliciting contributions to their campaigns, but by its own hand, which it has refused to stay in deference to the Legislature’s ability to legislate. After this election, and in the years to come, we may see the judiciary take the steps necessary to correct the problem. Or maybe not.

Recently, Louisville lawyer John Bush and UK College of Law Professor Paul Salamanca have published a white paper examining the jurisprudence of the Kentucky Supreme Court. Bush and Salamanca detail several examples of the Supreme Court implementing its policy preferences in seeming conflict with the policy preferences of the General Assembly. They conclude that the Kentucky Supreme Court, in tort, contract, and in constitutional cases, “has taken a fairly aggressive, and some might say overly aggressive, approach to the formulation of public policy and to the determination of where its own prerogatives end and those of the General Assembly begin.” (I encourage you to read the entirety of this white paper, as it lays out a good foundation for discussing what, exactly, qualifies as judicial activism.)

In an op-ed piece in today’s Courier-Journal, Louisville lawyer Theresa Fritz Camoriano joins in Bush’s and Salamanca’s chorus. Borrowing some of the imagery Chief Justice John Roberts used during his conformation hearings, Camoriano says that the role of judges is to serve as a referee, and not to determine in advance which team should win the game. (You may recall the Chief Justice’s characterizing himself as an umpire calling the balls and strikes, but neither pitching or batting for any team.) She summarizes the choice facing Kentucky voters in November’s judicial elections as follows:

Will we elect judges who respect the legal system and will perform their proper role, serving as impartial referees, or will we elect "super-legislators" who overstep their authority and undermine the foundations of our legal system?

Seemingly on the defensive, retired Justice Sandra Day O’Connor wrote an op-ed in the Wall Street Journal criticizing this sort of criticism of the courts. She believes that the criticism of our courts on the basis that they engage in judicial activism (also known as “legislating from the bench”) is somehow a threat to “judicial independence.” Her opinion piece equates criticism of judicial decision-making with outright intimidation and threats of violence against judges. The hyperbole is unbearable.

Responding to Justice O’Connor, Eleventh Circuit Judge Bill Pryor respectfully dissents. He makes three principal points: (1) Contemporary criticism of the judiciary is relatively mild; (2) Some unjust decisions [e.g., Dred Scott, Plessy, Korematsu] rightly deserve harsh rebuke; and (3) Judges must do more than respond to criticisms; they must exercise restraint. The opposite of restraint, of course, is activism – or, said differently, illegal judging. Judge Pryor agrees with my September 16 comments (emphasis mine):

Alexander Hamilton explained in Federalist No. 78 that judges exercise “neither FORCE nor WILL, but merely judgment.” Hamilton's point was that we must depend upon the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.

Alexander Hamilton and Judge Pryor are right. Judges – whether justices on the U.S. Supreme Court or judges of the Jefferson District Court – bear the foremost responsibility for maintaining their own independence. Especially in Kentucky courts, where all judges are elected and are therefore accountable to the people, judicial independence is a function of how well the judges are able to persuade the people that their liberties and freedoms are safe in the judges’ hands.

The real value of Bush’s and Salamanca’s white paper is that it shows how this debate over judicial activism is relevant to those of us fortunate enough to live in Kentucky. This is not a debate confined to the halls of Congress and confirmation hearings in the Senate Judiciary Committee.

We must honestly debate this issue. (Even honest “progressives” can admit that questioning judicial activism is no threat to judicial independence.) The problem of judicial activism is the greatest threat to a truly independent judiciary, and it is the greatest threat to our individual rights and liberties. Judicial activism is a larger threat to judicial independence than are financial contributions to judges’ campaigns and judicial candidates telling us what political party they belong to.

If we as voters stand for a judiciary that substitutes its will for our own, then our rights are only as safe as our judges permit them to be. Once we allow our judges to deviate from the text and original meaning of our constitution and laws as they were enacted, then our written laws become mere words written on paper. It is the judiciary we empower to give us everything we want that has the power to take it all away. We as voters must resist judges who, rather than saying what the law is, tell us that the law is as they will have it be. We as voters must resist the movement – still in its infancy in Kentucky – to supplant popular elections of our judges with judicial appointments, and thereby make our judges less accountable to us. Most importantly, we as voters must resist the temptation to believe that this year’s judicial elections do not matter.

Imagine for a moment a legal landscape where judges were able to divorce their own beliefs, prejudices, preconceived notions, and ideologies from the task of judging. What if the question of whether a certain legal rule or statutory enactment was good public policy or not, could be completely divorced from the unrelated question of whether the given rule or statute was constitutional? Imagine what that kind of legal environment would mean for the practice of law, and especially for future judicial elections.

Such a legal environment would render completely immaterial whether the judge in question was a liberal or conservative, a Democrat or a Republican, or a challenger or an incumbent. In this environment, every judge and judicial candidate would have the intellectual honesty and – dare I say – the courage to separate their own views of what is a good idea, or what may be good public policy, from their ruling in court on what is constitutional. Then, the judge’s personal views on, say, the propriety and necessity of the Partial Birth Abortion Act or the execution of murderers under age 18 would not affect that judge’s ruling in a case determining their constitutionality.

It is the concept of the evolving, or “living,” constitution that has made our judicial elections so contentious and Federal judicial confirmation hearings so frustrating to watch. For the uninitiated, the “living constitution,” which was advocated by such luminaries as Supreme Court Justice William Brennan and still haunts our jurisprudence to this day, is a theory of constitutional interpretation that basically puts each judge or justice on a pedestal, at the apex of power in our constitutional republic. Each judge, and each generation of judges, has the opportunity to redefine for itself what the constitution means. As pointed out by this excellent post by Jordan Lorence (and I encourage you to read the whole thing), the concept of the “living constitution” means that things that were once constitutional no longer are, because the more modern, enlightened judiciary deems the former constitutional construction to be out of step with society’s evolving values.

So, in our republic, who gets to make the decision about what society’s evolving values are? Under the “living constitution” theory, it is – you guessed it – the judges. The judiciary decides when we have outgrown, or when the opinion of the world community has sufficiently turned against, formerly constitutional practices like executing 17-year old murderers.

We may even agree that such a public policy is revolting, immoral, disgusting, or not befitting the evolving values of a civilized society. But the problem with allowing the meaning of the constitution to continually evolve and change as public opinion changes, or as the composition of a given court changes, is that such a mode of interpreting the constitution injects the personal opinions, prejudices, and preconceived notions of the judge into the equation, and substitutes them for the firm protections afforded us by our constitution. This kind of constitutional interpretation has caused us to turn our backs on the Rule of Law, which requires that ours “be a government of laws and not of men.” (Mass. Const., Part I, Art. XXX (1780).) In other words, the law becomes whatever the men (and women) in black robes say it is. Compare this current judicial reality with Article VI of the U.S. Constitution, which declares (my emphasis added):

This Constitution … shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The Constitution says that it is the supreme law of the land, not the evolving interpretation of it that changes with each judicial confirmation or election. What the judiciary may “give” us, in terms of constitutional and statutory interpretations with which we agree, a future court or judge has the power to take away. Under the prevailing theory of constitutional and statutory interpretation (assuming you can even refer to it as a single, unified theory), our rights, interests, and freedoms are never safe and are always subject to redefinition, revision, or elimination at the whim of the judges we appoint or elect. The same Court that gave us the much-celebrated (on the political left) decision in Roe v. Wade also gave us Plessy v. Ferguson and Dred Scott v. Sanford.

In conservative circles, the “living constitution” theory and “judicial activism” are often synonymous, because both concepts involve judges making the law, as opposed to simply interpreting the law and applying the law to the factual situations before them. As Lorence points out, judicial activism is often evidenced by several symptoms: (1) adherence to the idea of a “living constitution”; (2) extracting new “rights” from a constitutional text that is silent on the issue on its face; (3) ignoring past precedent to reach the outcome the jurist desires; and (4) making broad public policy pronouncements divorced from legislative direction. (On this fourth symptom, Chief Justice Roberts’ confirmation hearing discussion concerning baseball umpires is directly on point.)

To be sure, not all four of these symptoms present in all activist judicial decisions. Yet note that none of these four “symptoms” necessarily involves invalidating a statute or overturning precedent. This is why Professor Ringhand’s supposedly “objective” study of judicial activism misses the mark. She sets up a strawman by defining judicial activism in a way completely divorced from conservatives’ actual criticisms of the judiciary.

So what does all of this have to do with Kentucky’s judicial elections? Everything.

We now live in a country – and a Commonwealth – that is seemingly willing to subordinate the popularly elected legislative and executive branches, who are elected to make our public policy, to the judiciary. So long as that is the case, the public needs to know – and has a right to know – what is the supreme public policy and ideology that may at some point supplant that enacted into law by the “political” branches. For so long as the judges’ ideologies, and their personal beliefs as to what is “appropriate” public policy, are allowed to supplant the text and/or original meaning of our state and Federal constitutions and laws, then the electorate should have the right to demand accountability from their judges for those ideologies and beliefs. And by allowing candidates to recite little more than their names and resumes, the electorate’s right to know what policies will be enacted or declare in their name is ill-served.

Adopting Mr. Stevens’ suggestion of appointing Kentucky’s judges instead of electing them will not solve this problem. It will only shift the inherent tension between the legislative and judicial branches from the ballot box and campaign trail to the legislative confirmation hearings. Witness the politics involved in the U.S. Senate and its Judiciary Committee over the confirmation of judges for a foretaste of what would happen if Kentucky moved away from electing its judges. Different forum; same result.

We live in a representative republic, where the electorate will demand accountability for political decisions made in its name. For so long as the judiciary continues down this path of substituting its political judgment over that expressed in our constitution and enacted into our laws, the “political” nature of Kentucky’s judicial campaigns will continue. The judicial branch cannot at once decry the “political” nature of the current judicial campaigns and yet continue to make the sort of decisions that should be left to the political branches. This crisis is not one involving too much judicial speech; it is a crisis of unrestricted power of judges to shape our public policy. This crisis – if you believe it is one – is one of the judiciary’s own making. It is therefore now up to the judiciary to accept responsibility for it and to show us the way out.

You can now access my Blog via RSS feed!

If you are not familiar with this technology, an RSS feed will allow you to “subscribe” (for free, of course!) to my blog’s contents. You need only to download a “news aggregator,” which will automatically bring my Musings direct to your computer desktop whenever I update the blog. Thus, you no longer need to check back periodically if you’re interested in seeing if I have updated the blog – all the updates are yours as soon as I post them!

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