Court activism sets up 'vicious cycle'

By AUDREY YOUNG

Judicial activism creates a vicious cycle that undermines confidence in court decisions, says a long-serving United States federal appellate judge, Diarmuid O'Scannlain, brought to New Zealand by the US State Department.

Judge O'Scannlain referred to the present "conversation" between New Zealand politicians and the judiciary on the question of judicial activism - when judgments reflect what judges want the law to be rather than applying the law.

But he said he would "never deign to take sides in such a debate".

However, speaking at the United States Embassy in Wellington yesterday, Judge O'Scannlain, who was nominated by President Ronald Reagan 18 years ago, was highly critical of the effects of judicial activism.

"Eschewing judicial restraint for judicial activism such as this can generate a vicious cycle by triggering a lack of confidence in judicial decisions, which thereby stimulates political meddling, which again reinforces a lack of confidence in judicial decisions."

He called it a "degenerative process" and said the increasingly divisive US system of confirmation of judges by the Senate was evidence of it.

"Once a judge imposes his will as legislator, our very system loses its democratic legitimacy."

Judge O'Scannlain's visit was planned for last March - before the speech in May by Deputy Prime Minister Michael Cullen warning New Zealand judges against thinking they were above Parliament; and before Chief Justice Dame Sian Elias, appearing before a British select committee, criticised ministers for "inflaming suspicions" of judicial activism.

Judge O'Scannlain said the public was willing to presume that judicial decisions were accurate and faithful because they were made by someone free from the constraints of having to satisfy a constituency to remain in office.

"But preserving such judicial independence requires judges to defer to the legislative and executive branches on all issues properly within the realm of politics."

If the United States Constitution did not preclude the Government's action, "as a judge I must uphold it."

A judge's duty to apply the law meant more than simply deferring to the political branches of Government, he said.

"The very concept of law requires the judge to apply it in a manner that is both predictable and uniform."

Judge O'Scannlain spoke about the US Supreme Court decision allowing a challenge to the status of prisoners at Guantanamo Bay, in Cuba, to be heard in an American court.

The case showed how closely related law and politics could be, he said. Whether it was in the area of pornography, affirmative-action programmes or church-state relations, "a court's decision can have a profound influence on the democratic process".

Because of an "almost symbiotic relationship" between law and politics, there was a strong temptation to inject political considerations into legal determinations.

Judge O'Scannlain is a member of the Ninth Circuit Court of Appeals, one of 12 regional appellate courts, the next level down from the Supreme Court.

His circuit comprises nine states: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

The judge administered the oath of office taken by Charles Swindells before he became the present United States Ambassador to New Zealand.