SHOULD JUDGES HAVE LEGISLATIVE EXPERIENCE?

IS IT A PROBLEM THAT JUDGES NO LONGER HAVE EXPERIENCE WORKING IN CONGRESS?

By Alyx Mark February 10

These days, it seems that members of Congress are increasingly annoyed with the courts — or at least, more willing to criticize them.
Why? When government is divided and the parties are so polarized that they can’t reach a compromise, the courts are often left to interpret the resulting vague and complex legislation coming out of Congress. This means that Congress relies on the judiciary to understand its preferences and interpret the statutes as intended. Not surprisingly, when the interpretation doesn’t go their way, members of Congress are quite willing to complain about what they see as the judiciary’s failure to correctly understand the law.
This happens in part because the laws that get passed are vague enough that they could be interpreted in a variety of ways – an effect of trying to pass legislation appealing to a diverse coalition. Whichever way a court interprets a law, one side or another will say that’s not what the law meant.
But there is another reason as well: The percentage of judicial nominees who’ve worked in the legislative branch is the lowest in history. Fewer than 4 percent of federal judges confirmed since 2010 have worked in Congress. It is more common for judges and justices to reach the bench via the bureaucracy, academia, or through the judicial hierarchy itself. This may contribute to misunderstandings between the branches.
How can the branches understand one another?
Why aren’t judges coming to the courts from Congress anymore?
The answer might be supply and demand. At present, there is not a high demand from the president – or senators from states with open seats on the bench – for judicial candidates with legislative experience. On the supply side, there aren’t many incentives for ex-legislative branch workers to seek judgeships.
[Is there a revolving door between Congress and lobbying?]
On the demand side, presidential nominations priorities have shifted away from those with political backgrounds in general and toward candidates with academic or bureaucratic backgrounds. On the Supreme Court, we see examples of this shift: Roberts, Alito and Scalia all worked in the Department of Justice.
Why? Some fear that candidates with political backgrounds won’t be able to ignore their past political biases and become impartial judges, basing decisions purely on the law. And it’s harder to get someone with a known ideological record through the confirmation process. This could also be true for other nominees; writing law review articles also can reveal controversial political leanings.
On the supply side, fewer people with legislative experience are considering entering the pool. Maybe they don’t want to face the hostile nominations process with a record that is easy to attack. Or maybe they believe that they’re simply on a different track since each branch has become more professionalized, with very different training and experience expected to be successful in each. Or perhaps those in Congress prefer to use the skills they’ve learned and the connections they’ve made to take lucrative jobs in the private sector, rather than continuing in public service.
[Which members of Congress become lobbyists?]
Whatever the reason, the president isn’t nominating, and Congress isn’t confirming, judges with political experience. And that might actually be making it harder for the branches to understand each other.
This summer, I interviewed 27 of the federal judges and justices who have experience working in Congress, or 44 percent of all the judges with such experience. I asked how that experience influenced their perception of the relationship among the branches and how they work as judges.
But some judges remember learning about law by helping to make laws
Judges who have worked in Congress sometimes believe they have a different perspective on the law than do their colleagues. Firsthand experience making policy helps them see that the judiciary plays an important but equal role in the federal policymaking process.
As one former legislative staffer-turned-federal judge said, the experience “gives you an understanding … that we are an integral part of the dynamic of government. If you just went to law school, became a professor … and they put you on the bench, you might not have that frame of mind.”
This interviewee echoed the perspective of many such judges, who felt that legislative experience situates you within the branches in a way that judges coming from academia may not understand. The “inside track” provides judges with an informed view of the policymaking process that colors their view on their roles and their branch.
They’re more patient with the how laws get made
Members of the federal bench with legislative experience can be more likely to understand that every policy and statute comes out of a particular political context – and to respect that context.
As a result, they say, they search for information about laws instead of just trying to interpret the statute’s text as if it were a standalone object. Judges with congressional experience, on the whole, said they were more likely to defer to the legislature’s intent—having learned to respect it firsthand.
“The legislature might not do a perfect job of explaining its intent,” another judge told me. “But it isn’t for lack of trying … [As a result of my experience,] I am more patient with the government.”
Yet another judge noted how useful it was to investigate a law’s history, saying, “No human being can think of [what] every possible meaning of every set of words should be – legislative history is helpful to guide judges. It clarifies what these words mean.”
They can help colleagues without legislative experience
Judges who have worked in Congress see themselves as able to educate their fellow judges when those judges want to understand the politics behind a given law — or behind lawmaking in general, and how it results in ambiguous statutes.
“We judges get together for lunch every day,” yet another federal judge told me. “It is not impossible for one judge or another to say, ‘What on earth was Congress thinking of when they did this?’ and there is a good chance that I’ll be able to answer that question.”
Understanding compromise
Presidents and members of Congress may worry that firsthand political experience would make judges more “political” – and more likely to try to bend legislation to what they’d prefer than to interpret it faithfully. But they might have it backwards. They’re more likely to understand and respect the complicated compromises that go into turning a bill into law. Judges who’ve worked with legislators might be just what the judiciary needs.
Alyx Mark is an assistant professor of political science at North Central College in Naperville, Ill.

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