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Legislators are from Mars, Judges are from Venus

By E.L. Lipman

As noted in the posting immediately below, the Chief Justice of the United States issued his 2007 Year-End Report on the Federal Judiciary earlier this week. In the Report, Chief Justice Roberts declares that his first initiative in the New Year will be to ?carry on the efforts to improve communications with the Executive and Legislative Branches of government.? As the Chief Justice explains:

I am committed to continuing three of my predecessor?s important but unfinished initiatives to maintain the quality of our courts.

First, I will carry on the efforts to improve communications with the Executive and Legislative Branches of government. The Constitution?s provision for three separate but coordinate Branches envisions that the Branches will communicate through appropriate means on administrative matters of common concern. Each has a valuable perspective on the other. The Branches already engage in constructive dialogue through a number of familiar forums, including the Judicial Conference, congressional hearings, and advisory committee meetings. But the familiar avenues are not necessarily the only ones.
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I have asked the Administrative Office of the United States Courts to consider other opportunities for improving inter-Branch communication and cooperation. The separate Branches may not always agree on matters of mutual interest, but each should strive, through respectful exchange of insights and ideas, to know and appreciate where the others stand.

The Chief Justice?s remarks had me thinking. Among the key difficulties facing the current Court is that unlike any other time in American history, none of those now serving as Justices has ever been a candidate for elective office. At other points in the Court?s history there has been at least one former candidate ? and at many times several ? with some of these being the best known and most revered Justices: Sandra Day O?Connor; Potter Stewart; Hugo Black; Joseph McKenna; John Marshall and John Jay; to name just a few.

When I was a member of the House Judiciary Finance Committee, at budget time, the State Courts Administrator?s office was sharp enough to send along those judges who were former office-holders. During the visits with appropriators that followed, these judges knew the lingua franca of the Legislature and never had to guess where the ?others? stood.

I suspect that as the Chief Justice presses for pay raises for those on the federal bench, or even more convivial relations across First Avenue, N.E., he wishes that he had a few of those kind of ?old-hands? nearby. It must be more difficult to ?appreciate where the others stand,? when you have not had the chance to walk ? or should I say campaign ? in their proverbial shoes.

And while I cannot substantiate the claim, my guess is that the Chief Justice would also not need to list the improving of ?inter-Branch communication and cooperation? as one of his initiatives, if a few of those ?old hands? were serving with him on the High Court. I surmise, but cannot prove, that the writing style of a Senator (or a Cabinet Secretary) turned judge is both softer and different on separation of powers questions ? and in ways that are not nearly so provocative to former colleagues in the other branches. But, right now, that is just a theory of mine.

What is free from doubt is that as long as governments are instituted among men, these questions of tone and genuine understanding will be important. Legislators are from Mars and Judges are from Venus.

Perhaps one or more of those folks in Iowa tonight might be a good fit for the Court?

Full post as published by Within the Scope on January 03, 2008 (boomark / email).