Judge Gorsuch and Judicial Review

gorsuch-300x169Hearings have recently been held to confirm Judge Neil Gorsuch as a Supreme Court Justice.  While the hearings certainly involve a great deal of politics, they also raise the question of the proper role of a Judge in our legal system, whether that person is a Judge in a local Court, such as Westchester’s Village Courts and Justice Courts, in which Landlord-Tenant cases are heard, all the way up to the United States Supreme Court.

In general, a Judge’s role in our legal system is to interpret the laws passed by our legislators.  This role should be the same in any level in which the Judge may serve.  Let’s go through an example that has come up in our firm’s landlord-tenant practice.  A law was passed by the New York State Legislature requiring that the Referee’s Deed be exhibited to any tenant that the owner is attempting to evict after foreclosure.

As with many laws, this statute does not specifically define what “exhibiting” a deed to a tenant actually means.  Is it acceptable to simply mail or e-mail the deed to the person, or is more required?  Does a licensed process server need to come to the person’s place of residence and show them the deed in question, as if they were serving legal process? What if the person is not home, or refuses to answer the door when a process server comes knocking?

When these actual situations occur, it is the Judge’s job to interpret the law and decide, in this example, what “exhibiting the deed” actually means.  This raises a second question.  What resources should a Judge use in making such a determination?  Should she use her own common sense, or other methods?  This is another source of controversy, which can be seen in Judge Gorsuch’s confirmation hearings.  Many believe that the Judge’s duty is to attempt to ascertain the intent of the legislators who passed the law in question.  Again, going back to the “exhibiting the deed” example, the Judge would look at the legislative history which produced the law, as well as the intent of the legislators.  This is not an easy task.  The law in question may have been passed many years ago, before the advent of advanced communications and other modern conditions.  If a legal paper is e-mailed to someone, does that constitute proper legal notice?  A Judge may be called upon to make this decision if the law does not address the specific situation before him.

In the opinion of this blogger, the main duty of a Judge is to be fair and impartial, and not to prejudge any case.  Therefore, asking Judge Gorsuch during a hearing how he might rule on a future case shows a lack of understanding of the judicial process.  Any Judge must look objectively at a case based on the facts before her, and not make a decision before all of the evidence is heard.  Doing otherwise would make a Judge into a legislator, which is not their role.  Every Judge in our system, from local Judges to Supreme Court Justices, must be fair to all sides and interpret the laws passed by our elected representatives to the best of their ability.