How Judges Make Law (3/29/02)
by Dean Hartwell
President Bush
lamented over the rejection of one of his choices for an appellate court judge
position not long ago. He said we need judges who “interpret the law, not make
them.”
Perhaps the President should take a look at the Supreme Court before continuing
to make this comment about our judicial system. The high court recently
reviewed a case, Mickens v. Taylor, in which a Virginia state court
appointed an attorney for the indigent defendant, Walter Mickens, Jr. Mickens
had been accused of sexually assaulting and killing Timothy Hall. Sometime
earlier, a court had appointed the same attorney to represent Hall in another
case. The lawyer never bothered to tell his new client.
So, the attorney went to trial to defend one client, Mickens, for killing
another client. Could he separate what anger he might have felt that his former
client had been killed? Could he pursue leads that might portray the victim in
a negative light, even as it helped his new client? We will never know the
answer to these questions, but the fact that they and other questions about the
lawyer’s effectiveness can be raised easily suggests he did not provide Mickens
with his most effective representation.
The jury found Mickens guilty and sentenced him to death. His case subsequently
went up the court system of Virginia before landing in the United States Supreme
Court, where he asked them to overturn his pending execution.
If a justice were to interpret the law, as Bush favors, they might have looked
to the Sixth Amendment’s guarantee of effective legal representation and
concluded that this defendant’s trial lawyer did not measure up to that
standard.
Or, they could have looked at the trial lawyer’s actual performance and
interpreted his representation of clients as no more than “harmless error,” a
phrase that may be found in the Federal Rules of Civil Procedure and many state
laws.
Members of the Court made their interpretations. Five preferred the latter
interpretation while four wanted the former. With their votes, the majority
decided how future cases with this particular issue should be resolved. In short,
the justices made law.