[Mb-civic] Underneath Their Robes - Ruth Marcus - Washington Post
Op-Ed
William Swiggard
swiggard at comcast.net
Tue Jan 17 04:10:25 PST 2006
Underneath Their Robes
By Ruth Marcus
Tuesday, January 17, 2006; A17
Winnie the Pooh, or so he tells us, is a Bear of Very Little Brain. As
he struggles to think his way out of a predicament, you can see him
trying to knock the solution out of his fluff-filled head. By contrast,
Chief Justice John G. Roberts and Justice-in-Waiting Samuel Alito are,
as Pooh might say, Very Clever Brains indeed. But, listening to their
confirmation hearings, they seem to have a Winnie the Pooh theory of
judging: a conviction that if they just think, think, think, they will
come up with the correct result.
The now-chief justice expressed this view in his judge-as-umpire
analogy. The jurist's job, he said, was simply to call balls and strikes
as accurately as possible. "I believe that there are right answers," he
said, "and judges, if they work hard enough, are likely to come up with
them."
Alito, fantasy baseball player though he is, didn't cite the national
pastime. But while he is not a man of metaphor, Alito's version sounded
like judge-as-computer: Feed the data in, and the machine, if it is
functioning properly, will churn out the right result. "The judge has to
do what the law requires," he said, as if that were always discernible.
But interpreting the law, and the Constitution in particular, is not the
mechanistic enterprise that Roberts and Alito describe. True, the pair
have ample company, historically and politically: Many other jurists
have clung to the notion that the law is far more science than art, and
the Roberts-Alito vision is a highfalutin version of President Bush's
stock imprecations against judges legislating from the bench.
Yet the judge's job, as Roberts and Alito surely know, is far more
complicated and mysterious. That is, after all, what makes it worth
doing and what makes who is nominated to the high court matter. And it
is what I find so frustrating about the vapidity of their answers -- and
the inability of the confirmation process, as currently constructed, to
elicit much beyond these formulaic incantations about the rule of law.
For even the most responsible, well-intentioned judge, respectful of
precedent and -- to use the adjective du jour -- modest in his
conception of the judicial role, is called on to make, well, judgment
calls, filling gaps in legislation or interpreting capacious
constitutional phrases. The higher up the judicial ladder, the harder
the cases -- and the more important the judge's underlying worldview,
judicial philosophy and constitutional vision. There is, in short, a
soul inside every judicial machine.
Justice Benjamin Cardozo, lecturing on the judicial role in 1921,
described the inescapable, hidden forces tugging at judges -- "inherited
instincts, traditional beliefs, acquired opinions" -- forces, that, he
said, produced "an outlook on life, a conception of social needs . . .
which, when reasons are nicely balanced, must determine where choice
shall fall."
Cardozo dismissed judges who see themselves as mere painters hired to
touch up a room. "Their notion of their duty is to match the colors of
the case at hand against the colors of the many sample cases spread out
upon their desk. The sample nearest in shade supplies the applicable rule.
"But of course," Cardozo continued, "no system of living law can be
evolved by such a process, and no judge of a high court, worthy of his
office, views the function of his place so narrowly. . . . It is when
the colors do not match . . . when there is no decisive precedent, that
the serious business of the judge begins."
In a provocative essay in the November 2005 Harvard Law Review, Richard
Posner, a federal appeals court judge appointed by Ronald Reagan, makes
an even more unvarnished version of that argument. Much of the high
court's constitutional decision making, Posner asserts, is inherently
political.
As much as a court "is supposed to be tethered to authoritative texts,"
Posner writes, the Supreme Court often finds itself facing issues to
which "the constitutional text and history, and the pronouncements in
past opinions, do not speak clearly." It is in that "broad open area
where the conventional legal materials of decision run out, and the
Justices, deprived of those crutches, have to make a discretionary call."
Such cases, as Posner notes, inevitably bring into play competing
conceptions of social good, without solutions that can be derived with
certainty: the desire to ensure public safety vs. the need to protect
those accused of crimes; the rights of the fetus vs. a woman's autonomy;
the importance of colorblindness vs. a recognition of the legacy of
discrimination; religion as a positive force in public life vs. the risk
of marginalizing the minority. On a more elevated but even more
important plane, different judges bring to the bench different attitudes
about presidential power, federalism and constitutional interpretation.
What has been so disappointing about the nominees' testimony is their
unwillingness to engage in this discussion in an honest, meaningful way.
What has been so maddening about the questioning is the senators'
inability to penetrate their platitudes or robotic restatements of the
law. Because thinking hard isn't enough -- for a silly old bear or a
smart new justice.
http://www.washingtonpost.com/wp-dyn/content/article/2006/01/16/AR2006011600909.html?nav=hcmodule
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