Abner Mikva Interview: Conversations with History; Institute of International Studies, UC Berkeley

Politics, Values and the Separation of Powers: Conversation with Abner Jay Mikva, former congressional representative from Illinois, former appellate judge, former counsel to the president; 4/12/99 by Harry Kreisler
Photo by Jane Scherr

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How did being a legislator, a congressperson and a state legislator, prepare you when you put on the judicial robes?

I think it was the best preparation that one could have. I am sorry that so few judges come out of the legislative arena these days. That wasn't the way it used to be. Up to certainly the 1800s and the early 1900s, the traditional career path for most judges was to have spent some time in their state legislatures or in the Congress before they were appointed a federal judge or even elected to the state judiciary. Then a reform movement started in the early 1900s and a democratization movement. We were going to make the judges be more of the people and also be less political. So we stopped using a political background as a prerequisite or as a credential for getting on the bench. By the time I came on -- I was appointed in 1979 -- there were only two of us who had been appointed within the last ten years who had come out of the Congress of the United States: A judge by the name of Bill Hungate from Missouri and me. Everybody else came out of academia, they came out of the practice, they came out of everywhere but politics. And I find that too bad, because the legislative process is basically a big piece of what judges are reviewing.

Chief Judge Abner Jay Mikva, U.S. Court of Appeals, 1991 When I am looking at a statute, I not only look at the words, I have to understand the context in which those words are being used, because frequently they are not as straightforward and as simple as they might be, because they are the process of a compromise that has gone on at the legislative arena. And, if I as a judge don't understand that, then I end up saying, as some judges do, "Well I'm not going to pay any attention to that legislative process, they don't know what they are doing, and I'm just going to look at the plain meaning and if I can't understand it, too bad." But that's not what judges are supposed to do. Judges are supposed to try to carry out the will of the legislature, and sometimes that's hard to find.

Do you think that helps us understand why there has been a dissatisfaction with the court system and with judges in recent years?

I think partly so. I think judges tend to be too separate from the political process and the body politic. I guess the best example I can think of is one of the great controversies of our time, the abortion controversy, Roe v. Wade. Let me start off, so everyone understands my prejudices, I support the result of Roe v. Wade. When I was a member of the state legislature, I was introducing proposals to make Illinois law approximate what Roe v. Wade later on did . That was going on in other legislatures. I still have picture in my files of then-Governor Reagan signing a California abortion reform law which pretty much accomplished what Roe v. Wade later on did, and he signed it and the caption underneath was, "This will get abortions out of the back alleys and into the doctors' offices where they belong." And all the legislators are smiling on him. In New York, Governor Rockefeller passed a substantial reform law with political consequences. One of the upstate senators who provided a key vote in committee lost his seat the next time out. It was a hot political issue. But we were moving in the right direction. I'd passed the bill in the House of Representatives in Springfield. I couldn't get it out of the Senate, but again, it was moving.

And then, to my pleasant surprise, the Supreme Court came down with [a decision that] preempted the whole political process. They said, "Okay, as a matter of constitutional law we are going to say a woman has the right to choose, and if she decides that she want to have an abortion, she and her doctor can so decide." The result pleased a lot of us, still pleases a majority of the people in this country. But it angered that minority with a passion, because they had just been short-circuited in their efforts to fight it out in the political arena. You can't write a justice of the Supreme Court and say "Vote No." You can't even picket at the Supreme Court, though they tried to. There is a frustration that these five or six people, unelected, had made this basic decision which had been the subject of political process for so many years before. The justices were surprised. The late justice Blackman expressed his shock at how angry the minority was with the decision. I could have told him that was going to happen. And in retrospect, I wish the court had stayed its hand and allowed the political process to continue, because we would have legislated the effect of Roe v. Wade in most states -- not all of them, but in most states -- and we wouldn't have had to pay the political price we've had to pay for it being a court decision. The people who are angry at that court are angry beyond measure. As far as they are concerned the whole system is rotten because they've lost their opportunity to slug it out.

You have worn both hats, that of a congressperson and a judge. What I hear you saying is that the legislature is primary in your view. Mikva and Justice William Brennan, 1993 That if you have a really difficult problem, it's best handled there and not in the courts.

Absolutely. I don't think it's an accident that our founders put the legislative branch in the first article of the Constitution. The reason is that they perceived it to be the first among equals. Most of the people who'd been in Philadelphia had been members of the colonial legislatures, had been members of the Continental Congress, of the early congresses, and they understood the legislative process. They knew how it worked, and they recognized that there was a direct tie between where the people were and where the legislative branch was. They didn't know what they were going to get with this "elected king," the presidency, and they worried about it a lot. And they were nervous about the judges because the English judges had not been an unmixed blessing as far as the colonies were concerned. But they were sure what the Congress had to do, and they were content to give them the primary responsibility for making policy in this country. That is still the way the system works best. Now, the line between policy and constitutional principle is sometimes very, very thin. People like me can say, "Well, it would have been nice if the court had stayed its hand in the abortion controversy," but I don't think the court should have stayed its hand in the segregation controversy in the great case of Brown v. Board of Education. If the court hadn't acted then, we'd still have segregated schools in this country, we'd still have segregated railroad stations, because the legislative process, the political process, was just absolutely frozen. You weren't going to get Southern segregationists to agree to change the rules.

So from your perspective, the courts can pick up the political ball, but only in a timely manner.

Yes, that's exactly right. The timeliness turns on "Is the political process moving into a position to solve this problem, or is this something where the courts have to intervene to save the republic, and to save the basic principle of the republic?" I think that in the case of abortion, the court could have stayed its hand because the political process was moving. In the case of segregation, of civil rights, the political process had been frozen, and if the court hadn't intervened we would still be where we were. Now, how you predict that in advance is a lot easier said then done. It's understandable why the court sometimes moves too quickly to intervene and sometimes moves too slowly in intervening.

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