Watch CBSN Live

Do Judges "Make Policy"?

(AP Photo/Pablo Martinez Monsivais)
After I wrote Tuesday evening about the conservative myth that judges are not supposed to, and do not, "make policy" when they issue rulings, I received a good email from a federal district judge I know who often reads and comments upon my columns. The point in my piece was to expose the hypocrisy of those politicians who pass ambiguous legislation on the one hand and then on the other criticize those judges who are forced to "make policy" choices in interpreting vague statutes. Here is how the judge responded:

"Even the Supreme Court fails to define the terms it is using and sometimes uses oxymorons, such as 'compelling inference'… Every time I see the term 'reasonable' in an appellate opinion, I receive the message 'Here, you fix it.' Have you ever considered how stupid the term 'reasonably prudent man' is? Is it possible to be unreasonably prudent?

"It is very much like people saying 'predict the future.' Just what else can one predict? Am I an activist? Of course. Every time I make a ruling based on the ambiguities of statutes, appellate decisions and frequently contradicting facts I engage in judicial activism. Every time I sentence some poor moke, I engage in judicial activism. Every time I force a defendant to trial, I engage in judicial activism. Being an umpire is rather simple when the batter's box, the pitcher's mound and the baselines are clearly marked. Try doing it sometime in the fog."

This judge speaks for hundreds of other judges, trial and appellate both, all across the country. Whatever else the confirmation battle over Judge Sonia Sotomayor does, here's hoping it brings to light the truth about the cowardly way in which lawmakers punt the hardest choices in legislations to the courts—and then blame judges when they are simply doing their best.

Andrew Cohen is CBS News' Chief Legal Analyst and Legal Editor. CourtWatch is his new blog with analysis and commentary on breaking legal news and events. For columns on legal issues before the beginning of this blog, click here. You can also follow him on Twitter.

View CBS News In