Paul Bender: A constitutional authority still learns from his students

Gary Grado//January 20, 2017

Paul Bender: A constitutional authority still learns from his students

Gary Grado//January 20, 2017

Cap Times Q&A

The media usually seeks out the analysis and opinions of Arizona State University law professor Paul Bender when there’s a news story involving questions of Arizona law or the U.S. Constitution.

That’s because Bender, who teaches constitutional law, has a long resumé of working for prominent judges and a stint in the Clinton administration as principal deputy solicitor general. He has also argued 20 cases in front of the U.S. Supreme Court. Bender explains complex legal issues in a way laymen understand.

In 2011, he was a finalist for the chair of the Independent Redistricting Committee, which made Republicans cringe because they considered him a liberal disguised as a registered independent. Although his eligibility was upheld by the Arizona Supreme Court in a rare split decision after being challenged by Republican legislative leaders, he didn’t get picked anyway.

Paul Bender (Photo by Gary Grado, Arizona Capitol Times)
Paul Bender (Photo by Gary Grado, Arizona Capitol Times)

At 83 years old, Bender says he has no plans to retire anytime soon.

You’re the go-to guy for the press on questions of constitutionality of laws and legislation. Do you keep a running tally on when you call it right or wrong?

I always call it right. No. Usually, they don’t ask me questions like that. They usually ask, “What’s the problem here?” So usually I can hedge what I’m saying. Whenever you can hedge it’s good to hedge because you might turn out to be wrong. Sometimes I do get it wrong, but I think most of the time I get it right when I venture an opinion because I try not to say, hey this is unconstitutional unless it’s very clear that it is. If there’s a legitimate dispute about it, I try to give both sides.

You stepped into politics briefly when you were up for the Independent Redistricting Commission in 2011 and you told me then you were glad you didn’t get picked. Does that hold true today?

I think (IRC Chair) Colleen Mathis did a really good job so I don’t think I could have done any better than she did. The reason I’m glad I didn’t get picked is it’s a tremendously time-consuming thing to do, and very contentious, and I was afraid if it got contentious it would be very important for me to not get excited and that’s hard for me to do sometimes. So I was glad to be able to stay out of it. The one thing I would have done that she didn’t do, and I don’t know if she could have, but I would have tried to stop the practice of having a Democratic lawyer and a Republican lawyer. It’s supposed to be a nonpartisan commission, but then you get two partisan lawyers to fight with each other about what to do.

Do you use current events at the Arizona Legislature or Arizona law as lessons in your class?

All the time. I do it for a couple of reasons. One is, you guys call me and I think about things best when I’m talking about them and I talk about them in class and the students react to that and I learn something in doing that. And the most important thing about legal education is giving people the tools to do things themselves, and so the best way to get people to train to do that is give them real problems. If you read something that happened 100 years ago you feel like you’re reading history, but if you say, OK, here’s the minimum wage, constitutional or not, and we’re going to talk about that in class in a couple of weeks, and that means you’ve got to focus on real facts, and real people and a real situation and I think you learn a lot more by doing that.

Do you learn from your students?

All the time. No matter how much you think you’ve thought about something, you’ve never thought about everything. Students come up with ideas you’ve just never thought of. If they object to what you’re saying you really learn a lot. The worst thing you can have in a class, from my perspective, is having a student sitting there taking notes and looking at you and listening. That’s deadly.

I was just reading one of your law reviews and you said the Arizona Supreme Court got it wrong in upholding School Tuition Organizations in the 1997 decision of Kotterman v. Killian. What other significant cases in your opinion has the court gotten wrong?

The things the Arizona Supreme Court mostly got wrong in interpreting the Arizona Constitution were things about direct democracy power. Although they started out being very friendly toward the citizens, the ballot process — the Legislature has always not been comfortable with that and the court started siding with the Legislature a lot. The thing they probably got most wrong over that time was to say that if the voters adopted an initiative the Legislature could change it. Voters got so upset with that they passed the Voter Protection Act.

You often hear the term “activist judge.” Are there truly activist judges or are they just called that by the losers in a case?

The latter. It’s just an epithet that’s used. All judges are activist to a very considerable extent. The Constitution does not give us the answers — the words of the Constitution are often very imprecise and vague so they have to bring something. What does equal protection mean? What does free speech mean? You almost have to bring your own background to that and your own experience to that, so in that sense every judge is activist in that way. I don’t know that any judge will say to you, “Hey, what I want to do is to do what I want to do, I don’t care what the Constitution says, I don’t care what the Legislature says,” and I don’t think anybody really thinks that, so in intention they’re not activist at all, but in fact I think most judges are quite activist and they have to be because an activist means your own feelings about things get into your decisions and that seems to be inevitable.