John Fund presented an op-ed in the Wall Street Journal on Saturday, speculating that voter acceptance of increased partisan politics in judicial elections can be explained by judicial decisions that “leave the law stranded.” Fund reports that candidates for state supreme court seats spent more than $40 million in their campaigns in 2006. In further support of his position, Fund referenced the famed quote from Chief Justice Robert’s confirmation hearing statement, in which the then-candidate stated “Judges are like umpires. Umpires don't make the rules, they apply them."
The United States of America, as it has from its founding, employs a “common law” system. Black’s Law Dictionary defines “common law as “the body of law derived from judicial decisions, rather than from statutes or constitutions.” Of course, we have statutory law, as well, but for those of us in civil practice, common law predominates.
Judicial history is a topic rarely, if ever, taught in our primary and secondary schools. As a result, the lack of awareness of the common law system among the general public, and, apparently, journalists, is not surprising. The average man on the street would likely be stunned to learn that the vast body of civil law in this country comes not from statutes passed by state or federal legislatures, but from centuries of legal traditions brought to these shores from our British forebears. Those legal concepts have passed down through the generations, with each of those generations tweaking and adapting those principles, and developing new principles, as the needs of the populace evolved.
Justice Robert’s apparent unfamiliarity with the concept of common law is less easily explained, as he surely must have been introduced to it at least while he was a law student. In nearly all law schools, the required curriculum is dominated by examination of common law contract, tort, criminal, and property law principles. Any lawyer who expresses surprise at the notion of judges “making law,” rather than merely applying it, must have failed to pay attention in those early years of instruction. However, in fairness to Justice Roberts, he did acknowledge the concept of precedent in his confirmation hearing statement, even if he apparently didn’t realize that judges have traditionally done more than simply interpret statutory law.
Nevertheless, this longstanding tradition of judge-made law belies the claim that recent sharp increases in campaign spending may be explained by reaction to judge-made law. A far more likely explanation is that well-heeled constituencies have discovered that, just as with any other type of political candidate, campaign contributions to judicial candidates yield the desired results.
Hat-tip to How Appealing.
a GWB appointee who had ruled against Libby on this issue, gave leave to the scholars to file their brief. However, Judge Walton included the following sardonic footnote in the 