The Process for Judges Like the Process for Politicians
Michael McConnell uses a book review on the topic of judicial philosophy to bring forth an image of the new process for being confirmed to the Supreme Court:
Sotomayor’s repudiation of the president’s empathy criterion raised eyebrows and not a few questions about her sincerity. But in truth her answer was a powerful tribute to the traditional American commitment to the rule of law. Even facing no serious threat to her confirmation, Sotomayor found it necessary to embrace an ideal of judging as old as the republic.
One prominent law professor, however, found Judge Sotomayor’s response “disgusting.” Michael Seidman asked, “How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First-year law students understand within a month that many areas of the law are open textured and indeterminate—that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments.” Ronald Dworkin likewise took on the notion of being “faithful to the law,” arguing that “the phrase means nothing, because there are so many contesting views about how to discover what the law is that ‘fidelity to law’ means fidelity to your own conception of law.” Surely many more in the academy were thinking the same thing.
It is a shame that no one on the judiciary committee asked Sotomayor the question posed by Seidman and Dworkin: When the law is not clear, what does it mean to say that “the job of a judge is to apply the law”? Without elaboration, the statement is more platitude than commitment. What could it mean? And it would have been interesting to ask Judge Sotomayor why a judge should not decide hard cases based on her own moral judgment.
It has long been the case, but with Sotomayor the judicial confirmation hearings have become more a matter of showmanship than judicial philosophy, making statements that are, at best, arguably in conflict with previously stated beliefs and actions, giving politicians cover to vote for candidates who were nominated on the basis of their actual behavior. One more reason (if you need one) to edge our country back from its creep toward judicial tyranny. When the latest president and the latest Supreme Court justice have both achieved their positions by repackaging themselves to the point of falsehood, government is surely at a tipping point — at least in the sense of needing to be tipped.