Retired Justice Sandra Day O'Connor made an insightful observation when visiting Pomona College this week.
"When I retired from the U.S. Supreme Court, I had become aware of a serious problem in the United States that affects our nation's courts both state and federal," O'Connor said to roughly 1,000 students, administrators and residents. "There are a great many people in the United States today who think that judges are just politicians in robes."
Where would the people get such a skewed idea of judging? Well, from the judges for starters. The most visible court in the country has not shied away from applying a "right to privacy" that appears nowhere in the constitution but merely "emanates from various penumbras" in the actual Bill of Rights. It has outlawed the death penalty for violent child rape after finding that a handpicked "consensus" of several states' law is enough to change the meaning of "cruel and unusual punishment" and overturn other state and federal laws. Justice O'Connor herself was famous for deciding hard cases by inventing multi-factor tests that were next to impossible to apply consistently and were never part of the original law.
President Obama seems to be one of those people who confuse judges and politicians. Justice Sotomayor, his last Supreme Court pick, referred to the Courts of Appeals as "where policy gets made." Isn't policymaking for the politicians? Or take Goodwin Liu , the controversial Ninth Circuit nominee who represents the type of robed politician Obama wants to add to the Supreme Court next. He thinks judges should not worry so much about the text of the Constitution itself because they are busy "determin[ing] … whether our collective values on a given issue have converged to a degree that they can be persuasively crystallized and credibly absorbed into legal doctrine." Finger on the pulse of the American people? Ready to enshrine "our collective values" as law? Don't worry about running for office, just get nominated to the federal bench.
Justice O'Connor got this point right. But her education campaign will never change the public's view of the judiciary until the judges themselves resolve to simply apply the law and leave politics and lawmaking to the politicians.