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The perpetual debate over judicial restraint often comes down to a question of whose ox is being gored. A century ago, when the Supreme Court reversed national and state legislation regulating working conditions, liberals decried the Court’s activism. A generation ago, when the Supreme Court overturned state legislation outlawing abortion, conservatives attacked the Court’s activism. A decade ago, when the Court voided the civil remedy provision of the Violence Against Women Act, liberals again condemned the Court’s activism. In Planned Parenthood v. Ashcroft, U.S. District Judge Phyllis Hamilton on June 1 enjoined the Partial Birth Abortion Ban Act as unconstitutional. In so doing, she went beyond the act: She examined the quintessential legislative process of holding hearings. She examined the testimony of those petitioning their government for a redress of grievances and found their testimony so faulty that she disqualified Congress from acting upon it. Liberals applauded the decision. But there are more conservatives than liberals sitting on the bench today. If conservative judges adopt Judge Hamilton’s approach, liberals may live to regret their enthusiasm. ABORTION ‘AS NECESSARY’ The Supreme Court has held that states may regulate abortion after viability — i.e., when the baby has a realistic chance of survival outside the uterus. But the Court has also held that any such regulation is subject to an exception: Abortion must be allowed when necessary to protect the life or health of the mother. The Partial Birth Abortion Ban Act prohibits a medical procedure known as intact D&E, or dilation and extraction. Judge Hamilton found the ban unconstitutionally burdensome because it does not distinguish between pre- and post-viability. She also found it unconstitutionally vague because partial-birth abortion is not a medical term. Thus, doctors cannot be sure which procedures might subject them to criminal penalties. These conclusions, whether one agrees with them or not, were based on conventional applications of judicial review. But Judge Hamilton did not rest there. She went further and considered the absence of a health exception. Congress excepted from its ban only partial-birth abortions necessary to save the mother’s life. It did not include an exception for the mother’s health because, according to its legislative finding, “a partial-birth abortion is never necessary to preserve the health of a woman.” Never is an inherently controversial word. Many doctors and medical organizations testified to the contrary. But controversial or not, never is what Congress determined. And it did not do so precipitously. The act was debated over eight years. Six hearings were held, and “extensive” written submissions were compiled. The government argued that when Congress found that partial-birth abortion is never necessary to preserve a mother’s health, it was making a factual determination. It urged the judge to treat the finding deferentially. The plaintiffs argued that the finding was not a “finding” at all, but an attempt to legislatively supersede the constitutional standards set forth by the Supreme Court. They urged her to review it de novo. Judge Hamilton could have accepted either view and remained on defensible ground. But she preferred a third approach: a “hard look” standard urged by a group of constitutional law professors. While acknowledging that the Court has never “specifically articulated” this standard, the professors invited her to “conduct a stringent and broadly based review” of Congress’ health exception finding. She accepted their invitation. Had Judge Hamilton confronted a factual record assembled by another district judge, she probably would have deferred to his evaluation of the credibility of the witnesses. After all, the other judge would have seen them testify, while she did not. But under the hard-look standard, Judge Hamilton gave Congress no such deference. First, she limited her review to the testimony of physicians at the hearings and the written submissions of two organizations. She disregarded the rest of the extensive record. Granted, at 117 pages, her opinion is still very long. Had she dealt with the entire eight-year record, it might have been voluminous. But a reviewing judge would never limit her consideration to just some testimony, or some exhibits, admitted by the trial court. Next, Judge Hamilton discounted the testimony of the doctors who testified for the ban because none of them had ever performed an intact D&E. Of course they hadn’t. They favor criminalizing such procedures. The judge compared them to the physicians who had testified in her court against the ban. She deemed the latter doctors’ testimony more credible because they had performed the procedure, and many teach it. But how could anyone expect to find pro-ban doctors who not only perform partial-birth abortions, but also teach the procedure? The judge discounted the credibility of two pro-ban physicians even though she had not heard them “as they appeared before Congress.” But they had testified in the court case. Based on their testimony in court, she expressed “credibility concerns” about their testimony before Congress. Here again, Judge Hamilton paid less deference to Congress than she probably would have paid to another federal judge. A judge who has heard a witness lie in one proceeding is not thereby entitled to assume the witness lied in some other proceeding. Congress, which did hear or read these physicians’ testimony, apparently found them credible. Certainly, when a presiding judge finds a witness credible, a judge who has not presided has even less ground to deem the witness untrustworthy. Judge Hamilton found the oral testimony before Congress as a whole “not only unbalanced, but intentionally polemic.” No doubt it was. But her characterization could probably apply to every legislative hearing ever conducted. Politicians typically invite those witnesses they wish to hear. Witnesses are usually partisan and passionate. Polemics are the rule. So is imbalance. It would be a good thing if legislators treated issues in the way the Fox News Channel purports to treat the news: fair and balanced. But no legislature has ever adopted the Fox standard. (Neither really has Fox.) In discounting the congressional testimony because the hearings did not live up to the standards of a perfect trial, Judge Hamilton set an impossible standard. One of the greatest jurists of the last century, Learned Hand, understood the shortcomings of the legislative process yet still argued for deference: “The only way in which the right, or the wrong, of [a] matter may be shown, is by experiment; and the legislature, with its paraphernalia of committee and commission, is the only public representative really fitted to experiment. That the legislature may be moved by faction, and without justice, is very true, but so may even the court.” A TWO-EDGED SWORD If liberal judges take a “hard look” at legislative fact-finding, so might conservative judges. That might lead to interesting consequences. In September, the federal ban on assault weapons will expire unless Congress renews it. In considering renewal, what if Congress finds that such weapons serve no Second Amendment interest? Would a conservative judge be free to discount such a finding if no witness testifying for the ban had ever fired such a weapon? If inexperienced witnesses predominate, might the judge reject the testimony as “unbalanced and polemic”? Liberals might counter that Judge Hamilton was entitled to her hard-look approach because she was protecting a woman’s constitutional right to choose. But that right eluded constitutional scholars for almost two centuries, and was ultimately found only in the “penumbras” and “emanations” of amendments. The right to bear arms is expressly provided for in the Second Amendment. This is not to say that her decision was wrong or that a hypothetical judge invalidating the assault weapons ban would be right. Rather, it is to point out that rejecting congressional findings is a two-edged sword. Observers who applaud some results may be appalled by others. Ultimately, the problem with judges examining congressional fact finding is that senators and representatives are not jurors. They are not elected based on their ability to render a verdict based solely upon admissible evidence. No candidate has ever won by bragging that she has no opinion on any of the issues. Judge Hamilton treated Congress as a tabula rasa corrupted by “unbalanced” and “untrustworthy” testimony. Therefore, she would not credit its vote. She failed to acknowledge that legislators come pre-equipped with experiences, opinions, and, yes, prejudices — which they rely on when they vote. Evaluating the testimony of congressional witnesses is also a questionable enterprise because legislators do not really need such testimony to justify their votes. Sen. Bill Frist (R-Tenn.) is a physician who frequently travels to Africa to perform surgery. May a judge require him to hear testimony from a balanced roster of doctors before respecting his right to vote on a medical issue? Sen. Edward Kennedy (D-Mass.) lost two brothers to gun violence. Does he have to attend hearings featuring qualified experts before voting on a weapons ban? Judge Hamilton took a “hard look” at the congressional record and found it wanting. But no matter how hard the look, she could not see inside the legislators’ heads. That is why her approach to congressional fact-finding should not be emulated. Lawrence J. Siskind, of San Francisco’s Harvey Siskind Jacobs, specializes in intellectual property law. A longer version of this commentary first appeared in The Recorder, an American Lawyer Media newspaper.

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