Stephen Presser Talks About Judges As Umpires
The Federalist Society for Law and Public Policy Studies at Washburn Law hosted Professor Stephen B. Presser, the Raoul Berger Professor of Legal History at Northwestern University School of Law, on Tuesday, Spetember 27, 2005. Professor Presser explored the topic "Are Judges Really like Umpires? Judicial Ideology and the State of the Court" with more than 70 students, faculty and staff.
Professor Presser addressed his view of the "Nuclear Option," the "Byrd Option," and the "Constitutional Option," maintaining that this option is merely a parliamentary maneuver that would change the Senate filibuster rule requiring 60 votes to shut off debate on judges. Presser questioned whether there is a "right to filibuster" while referring to the U.S. Constitution, especially Article II, Section 2.
Professor Presser's view is that this debate is actually about judges who "make rather than interpret the law." However, the Presser questioned "does anybody believe that in this day and age?" while observing that we are under the influence of Holmes and Jerome Frank. Oddly enough, one person does appear to believe that judges should not make law— Chief Justice John Roberts. Presser believes that the Supreme Court still faces some "hot-button issues" such as race, religion and abortion.
Professor Presser also took issue with the "mystery passage" in Lawrence v. Texas: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Referring to "Judicial Ideology" as an oxymoron, Presser compared his view of the ideologies in the Senate and stated that the
"courts have become politicized. One theory [is that], the Democrats have lost the other branches, the courts are their last resort. In a way this is nothing new. Tocqueville observed this in the Nineteenth Century. Every political issue eventually becomes a judicial issue. But perhaps this is different. Until recently courts ([and] especially unelected federal judges were not policy makers) . . . it has never been done in groups, for ideological reasons . . . it has never involved such unalloyed mendacity, 'Neanderthals,' 'far right wing,' 'extremist' etc. Why now?"
In answering his own question, Professor Presser referred to the partisanship that in the Senate today and eluded to the need for an
"American aristocracy, for a check on majority rule. The courts, in a way, have come to be that; they perhaps should be praised for the courage to do what's not popular. On the other hand, popular sovereignty is supposed to be our philosophy of government, and government by judiciary is not. But, again, the genius of the Constitution is that it is supposed to restrain the power of government, and preserve minority rights. The Democrats in the Senate claim to be doing that. You be the judge.
Following Professor Presser's talk he took several questions from the audience and visited with faculty.
Richard Stevens contributed this article.
(Posted October 3, 2005)
