What can we expect from judges?

The American Civil Liberties Union has decided to bring lawsuits in Pennsylvania, North Carolina and Virginia alleging the U.S. Constitution mandates redefining marriage in those states’ laws to include same-sex couples.

It was probably not a good sign that shortly after the lawsuit was filed in Pennsylvania, the Pittsburgh Post-Gazette ran a profile of the judge assigned to hear the case.

Foundational to the concept of the rule of law is that we are to be governed by laws made through the representative branches according to established procedures, not by the whims or opinions of individual officeholders.

In the case of the judiciary, the personality and opinions of an individual judge should be particularly irrelevant, since their task is to apply established principles to specific disputes and should be scrupulously impartial to the parties to the dispute. Importantly, they are also not elected to a representative capacity.

As judicial lawmaking has become more common, it is not surprising that press attention would turn to the preferences and characteristics of judges.

This particular article contains an interesting and telling passage. It quotes a law professor talking about the judge assigned to the Pennsylvania marriage case:

“I think attorneys who are strong political conservatives will agree that he has turned out to be an excellent judge. They might not like his decisions in certain cases,” Mr. Power said, “but he’s turned out to have a good temperament, to be a hard worker, and to be interested in confronting interesting intellectual challenges. And this case will be one of those.”

These are certainly wonderful qualities in any person. Someone who is personable and hard-working would be a credit to any profession. Intellectual curiosity is also an excellent trait, and makes for good companionship.

As laudable as these characteristics are, something appears to be missing in this description. If all the characteristics named in this passage were present in a judge, could that judge still be unsuccessful in filling their role? Of course.

Personal traits are important but hardly sufficient. What is missing is anything specific to the role of a judge. A judge ought to work hard and be friendly but paramount should be that judge’s commitment to applying established law regardless of political and social pressure or personal inclination to the contrary. It requires absolute allegiance to the Constitution, not trendy glosses on that document. It requires restraining from ruling on matters about which the Constitution is silent.

Coupled with administrative diligence and diligence, the judge who possesses these latter qualities will ably fill the role intended for them by the Constitution and which can be essential to a free society. Without those qualities, the rule of law is diminished.