August 10, 2006
Judicial Ethics and Statutory Interpretation
I'll probably re-visit this notion several times, but wanted to write a bit about it now.
My colleague, Linda Jellum, and I recently finished a book on statutory interpretation. For well over a year, I was completely focused on the competing approaches -- textualism, purposivism, intentionalism, etc. -- and read various judicial views on the appropriateness of each approach.
One thing that really bothered me about a lot of what I read was the impugning of character by textualists of both legislators and judges. For example, there's a quote that many judges will use about how legislative history involves "looking over the crowd and picking out your friends." Likewise, there's a suggestion by textualists that anyone who relies on legislative history or purpose is somehow giving themselves room to interpret a statute as she sees fit. Further, textualists will argue that legislatures "plant" legislative history in order to later bend judicial interpretation.
There's something about all that which bothers me: it lacks respect, and impugns the character of fellow judges and legislators. I have no doubt that one can cherry-pick statements from legislative history to support an interpretation, for example, but I also have no doubt that legislative history in the hands of a judge actually seeking "the meaning" of the text is a useful tool. Likewise, I don't doubt that some legislators may try to "spin" proceedings to get a record that favors their view of the meaning of the text. But I hardly think that all legislators do, and I certainly don't think that, even if some do, we should throw the baby out with the bath water as a result.
I know I'll come back to this issue repeatedly, but wanted to post a bit about it now.
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