[Mb-civic] Underneath Their Robes - Ruth Marcus - Washington Post Op-Ed

[William Swiggard]

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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