Monday, May 4, 2009

Here Come...

I'm no judge, but I grew up in the house of one (who looked a little like the above cartoon). On occasions, he decided cases in ways that upset him: the law, he found, required it. More than a few times I heard him say that when laws were wrong, it was up to the legislature to change them; but until then, he had to rule in ways that followed those laws. He was, I might add, a proud liberal. He would have made a fabulous Supreme Court Justice; in fact, he was nominated to the Ninth Circuit by Lyndon Johnson; for a bunch of political reasons,* compounded by a FBI screwup, it didn't happen. I like to think that if it had, at some point he'd have ended up on the Supreme Court, such was the acknowledged brilliance of his legal mind. He settled for a stint on the Oregon Supreme Court, and then as Chief Judge of the Oregon Court of Appeals.

Anyhow, the law has always interested me, and I've paid perhaps more than the average amount of attention to various judicial rulings over the years, and to the extent to which judges -- yes, even "originalists" like Scalia (especially Scalia) -- try to hide their prejudices in legalities. Legislate, in other words, from the bench. In fact, it's been particularly interesting/amusing how predictably most justices fall on one side of a question or the other, which says the law is hardly carved in stone. Judges like my dad, in other words, are rare even on the highest of courts.

I'm glad President Obama will be appointing the replacement for Justice Souter. I'd hate to have another judicial activist like Scalia, or Thomas, or Roberts, or Alito assume the robes. But I must say there were some things in Obama's statement that gave me pause (emphasis mine):

"The process of selecting someone to replace Justice Souter is among my most serious responsibilities as president. So I will seek somebody with a sharp and independent mind and a record of excellence and integrity. I will seek someone who understands that justice isn't about some abstract legal theory or footnote in a casebook, it is also about how are laws affect the daily realities of peoples lives--whether they can make a living and care for their families, whether they feel safe in their homes and welcome and their own nation. I view that quality of empathy, of understanding and identifying with peoples' hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. I will seek someone who is dedicated to the rule of law, who honors our Constitutional traditions, who respects the integrity of the judicial process, and the appropriate limits of the judicial role...."

In the most abstract of senses, I'm not sure I agree. Of course excellence and integrity, dedication to the rule of law and Constitutional traditions and judicial process are inarguable. But if the role of a judge is to apply the law to the case at hand, dispassionately and free of personal prejudice, then I don't entirely see how empathy and identifying with peoples' hopes and struggles enters into it. The question of how a law affects people is one for legislatures to address.

Or maybe not. That's, I guess, a fundamental difference between liberals and conservatives. It comes down to whether you think certain rights are explicit or implicit; and when implicit, in what way are they to be inferred. What constitutes "equal protection," or "privacy," for example, and in what areas may they be extrapolated. Since many Constitutional terms are pretty vague, interpretation is inevitable. Required. And so it's not surprising that one's philosophy of law, and of life, would affect one's rulings. It does matter what sort of person is selected. And yet, beyond certain essential qualifications of intelligence and integrity, it seems like it shouldn't.

Though written in educated English on palpable parchment, The Constitution is clearly among those "facts" that are subjected to our human filters, to the differences between the authoritarian (conservative) and thoughtful (liberal) minds. (If this article doesn't demonstrate the extent to which we live in different -- and entirely non-overlapping -- realities then nothing does.) Given our separating polarities and our common human frailties, it's impossible to expect that any two judges would look at a given set of facts and come up with identical conclusions.

So I guess, really, what our President was saying, when all is said and done, is that in addition to a person of unquestioned integrity and fine mind, he'll be looking for a liberal. I have no problem with that.

* If anyone's interested, it went something like this, as I understand and recall it: the nomination was sponsored by the two Oregon senators, Wayne Morse and Mark Hatfield; the former a Democrat, the latter a Republican, both strongly opposed to the Vietnam War. Dad's nomination went to the US Senate along with a nominee for another federal judgeship, who was approved. Dad's Senate review was delayed because the local FBI had, evidently, made some sort of error in its paperwork, so it was returned to them for correction/clarification/whatever. Meanwhile there arose the Abe Fortas brouhaha, after which Johnson said he wasn't going to nominate any more federal judges, prickly man that he was. Next, Wayne Morse was defeated in his reelection bid, by Bob Packwood, a Republican hawk, whom Mark Hatfield had not supported because of his war stance. When Dad's nomination stalled, Senator Hatfield initially told him he'd restart it with the next president (Nixon, as it turned out). But when Packwood won, Hatfield found himself in trouble with the Oregon Republican Party, and told Dad, apologetically, that he'd have to find a Republican judge. And that was that.


  1. I think overall you're not really correct. Even at the trial level, judges (and juries) exist to exercise judgment, not mere pedantry. As best I understand (I'm no historian) the body of common law that underlies our (Western) notions of justice was created mostly by judges themselves.

    This view applies especially to the Supreme Court. Cases typically get to the Supreme Court precisely because the law itself has in some sense failed to conform to our notions of justice. The Supreme Court must necessarily "legislate from the bench." Were they fail to do so, they would be superfluous. We restrict the court not from creating law; we restrict them in that they can create law only under particular circumstances and in particular ways.

    The system is imperfect (to put it mildly!) and there is much scope to criticize the human judgment of some people on the Supreme Court (cough Scalia) but we have nothing better than individual human judgment to guide our affairs.

  2. Liberal? How Naive. It's gotta be a Gay-Trans-Gender-African-American-Hispanic-Jewish-Amerindian Liberal with impecable morals and academics, no embarassing tax or Aux-Pair skeletons in the closet...

  3. TBB: I think you're mostly right, but there's a big difference between jury trials and what the S. Court does, or so I think. In the former, it's facts that are at issue, and the "human element" is to decide which "facts" represent the truth; ie, he says, she says. And they can let their emotions play, as in OJ. Likewise, at the trial court level, judges are expected (I guess) to exercise a certain amount of flexibility, because they're dealing with individuals.

    The supremes, on the other hand, are, in theory, there to decide what the LAW is, and how it does or does not apply, and they're dealing with a much greater clientele than the individual who brought the original case. They're deciding for the whole country. That, too, is subject to human interpretation, which is where ideology comes into play, although, in theory, it shouldn't.

    I speak as someone who has lots of opinions, but no particular knowledge of the law. Which is just how I like it.

  4. I meant to add this: another important job of the S. Court (maybe the most important) is to prevent legislative overreach, ie to rule unconstitutional laws that improperly discriminate, deprive, etc. It's in that area that people tend to see judicial overreach, or "legislating from the bench." In my state, we've had several voter initiatives declared unconstitutional, and, in my view, properly so. But when it happens, there's lots of screaming. It's in that particular area that one would like to see the most dispassionate judges; the mob mentality, like THE FORCE, is strong in those ones.

  5. Ask Dred Scott* how fair the Supreme Court is...or any of the American Citizens sent to interment camps during WW2..(Who was that Democrat President?? Guy in a wheelchair) and howcome none of the Democrat appointees ever turn Conservative?? On the other hand, they did get the 2000 election right, so there's that...

    * I know he's Dead

  6. howcome none of the Democrat appointees ever turn Conservative??Excellent question, Frankie. Stay tuned. I've been working on a post about that. (Hint: it has to do with being right.)

  7. Frank:

    You are such a slyboots!

    As I've pointed out over and over, in your comments here don't paint you as stable or intelligent. I have had nightmares where, while looking up into the operating room lights, I hear, "Whenever you're ready, Dr. Drackman.")

    Imagine my surprise when I checked out your blog. You're good with physics and chemistry, can see calendar dates, past and future, and you talk about a Wim Wenders film that I recall from an artsy college class. I can't deny that you're funny.

    It's worth something that you see the humorous side of being a reactionary jerk.

    Sam Spade

  8. The law is an imperfect mirror of justice, and justice itself nothing more than the application of our intelligence — sometimes subtle, often vain — to our wants and needs. The highest role of any judge is to smooth out imperfections in the law and bring it closer to justice.

  9. "After all, the absence of empathy isn't great jurisprudence: it's psychopathy."

    Jonah Lehrer on judges and empathy:


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