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Article
Judges Who Lobby Congress
Washington Law Review
  • Jonas Anderson, American University Washington College of Law
Abstract
When advocating for legal reform, judges cross a murky line in congressional-judicial relations: lobbying is legally permissible, but generally frowned upon. This is because there are no legal or ethical constraints on judges who lobby, only an ill-defined norm against the practice. Scholars have largely dismissed judicial lobbying efforts as haphazard, one-off events, driven by the unique interests, expertise, or ideology of the individual judge involved. According to scholars, there is nothing we should do—nor is there anything we could do—to reign in judges who lobby. This Article challenges that presumption on two fronts. Theoretically, it argues that judges on specialized courts are more prone to lobbying than are judges on generalist courts. Judicial lobbying occurs, in large part, when the judiciary senses a threat to its jurisdiction. Specialized courts—courts whose jurisdiction is defined by subject matter, rather than geography—are more likely to engage in debates about the substance of that subject matter. Thus, these courts act as both court and agency, straddling the line between permissible advocacy by judges and impermissible lobbying by government employees. It is this agency-like lobbying that we should attempt to eliminate. Normatively, this Article argues that in certain instances judicial lobbying can and should be curtailed, counter to the prevailing wisdom. Judicial lobbying always comes with concerns about tense interbranch relations, but lobbying by specialized courts potentially sacrifices long-held judicial virtues, including due process and impartiality. This Article offers a check on such lobbying that leverages the wisdom of the entire judicial branch to reign in abuses by specialized courts.
Citation Information
Jonas Anderson. "Judges Who Lobby Congress"
Available at: http://works.bepress.com/jonas_anderson/7/