It’s called “separation of powers,” and there’s a good reason for it. The legislative branch makes laws. The executive branch carries them out. The judicial branch interprets the law and applies it to the facts of cases brought to the courts.
That is why it raises concerns to learn that some Nebraska judges may have advocated positions about a proposed state law that those judges might one day be called upon to interpret.
Regardless of the pros and cons of State Sen. Russ Karpisek’s bill, which would change how custody of children is awarded in divorce cases, the senator is right to raise a red flag about judicial lobbying. Judges need to exercise restraint when tempted to insert themselves into the lawmaking process.
The Nebraska Constitution gives the Legislature the power to make law. State senators can, and sometimes do, solicit input from the separate-but-equal executive and judicial branches of government.
The governor and his executive branch, by virtue of proposing budgets and veto power, have necessary and proper roles in that lawmaking process.
The independent judiciary does not, beyond a handful of instances when the judicial branch’s budget is being considered or lawmakers are weighing significant structural changes to the court system.
That principled stance doesn’t preclude lawmakers from calling on judges to testify about a bill’s impacts or prevent judges from sharing their experience. Such counsel has great value. It recently helped lawmakers address how the state handles the sentencing of juvenile murderers.
But there’s a difference between lawmakers asking judges for input and judges actively lobbying for specific legislative action.
The general rule for the judiciary should be to refrain when it comes to matters of politics and policy.Lawmaking is not their role in our government, nor should it be.
There is potential for conflicts of interest. Were Karpisek’s bill to become law, how many fathers might be able to raise legal questions about impartiality if a judge who had lobbied for the law subsequently denied that father shared custody of a child after a divorce?
Admittedly, even judicial standards are unclear on proper engagement of lawmakers.
Supreme Court Chief Justice Mike Heavican pointed to a provision of the Nebraska Revised Code of Judicial Conduct, which prohibits judges from consulting with members of the Legislature “except in connection with matters concerning the law, the legal system or the administration of justice.” It could be argued that Karpisek’s bill fits those guidelines.
But does this bill affect how judges do their jobs any more than a change to the sentencing ranges for cocaine possession or rape or murder? Should judges be lobbying on those questions as well, or should they wait to be asked?
Unless it directly impacts the way their job is carried out — the number of judges, the number of secretaries, the condition of courtrooms — judges should be cautious.
Our court system is built on trust, and the polarization of modern-day politics has only magnified the public scrutiny of the independent judiciary. The court system does not need an albatross around its neck.
Members of the judicial branch have much wisdom to share with lawmakers. When they do so, it should be in the context of fact-finding, not lobbying legislators. Their decisions on matters of law need to be divorced from the politics of the day.