The Brief: Law School News and Events

Liberal Firebrand and Former Judge, Mikva Strikes the Gavel Against Judicial Activism

After serving fifteen years as a federal judge, Abner Mikva, a fiery liberal Democrat and former legislator, concluded that judges have no business legislating from the bench — a view he shares, surprisingly, with President Bush. On the other hand, Mikva, both admired and loathed by politicians of all stripes for his independent outlook, made controversial comments after Bush took the presidency after losing the popular vote: He said the Senate should not confirm any of his nominees to the Supreme Court.

The Chicago-steeped politician, who taught at Penn Law during the 1980s, returned last April to speak to the Penn Law Democrats. During his freewheeling lecture, he delivered observations drawn from his 40-year political and legal career. Mikva performed the rare feat of serving in all three branches of government: He was a member of Congress, chief judge on the U.S. Court of Appeals for the District of Columbia Circuit, and chief counsel to President Clinton.

For Mikva, the roles of the legislature and the judiciary diverge. Representatives are “change artists” who do the people’s will, he said. They should effect new ideas, look ahead and build political coalitions to approve their measures. In contrast, he said, judges should restrain “their enthusiasm for changing things,” and should “contemplate what is, rather than what should be.”

When courts make new policies they interfere with the political process, he said. As an example, he cited Roe v. Wade, a decision he supported. As he recounted, in the 1970s, state legislatures had begun considering proposals to legalize abortion. Then the federal court stepped in and preempted the debate. Although a majority of Americans support the high court decision, it angered a vocal minority who felt five or six unelected officials short-circuited the political process, Mikva said. We have since experienced a serious backlash because that minority lost the opportunity to “slug it out in the legislature,” said Mikva. He said opponents were aggrieved because they could not petition justices or voice effective protest as they could have with state legislatures.

Mikva, who Dean Michael A. Fitts referred to as “a walking violation of the separation of powers,” believes that separation works because “it allows branches to dominate as needed.” Mikva noted that the Supreme Court ascended in the 1950s and 1960s with decisions like Brown v. Board of Education, while the executive branch had more influence than he was “comfortable” with in the 1970s and 1980s. Today, he contended, the branches are in a stalemate.

Mikva’s years in public service have convinced him that public interest law “is an incredible instrument for doing good,” although it requires a lot of self-confidence. Lawyers, unlike politicians, don’t have a constituency to guide and support their decisions, he said. But, he told students, those who opt out of public service risk ending their career with a hollow sense of accomplishment.