Dahlia Lithwick has a cute piece on SLATE today, “Please Don’t Feed The Federalists,” that takes “Democrats of the Senate Committee on the Judiciary” on an “introductory tour of the North American federalist in his natural habitat.”
We hope that by getting to know the 10-toed American federalist a bit better this afternoon, you’ll avoid, in the future, some of the errors and missteps that have thus far plagued your efforts to understand, question, and possibly impugn them at confirmation hearings. Sen. Feinstein, please do try to keep up with the tour. We ask that you listen carefully as we debunk some of the stereotypes and myths you may have heard about the cadre of conservative white men who worked in the Reagan administration….
The first four of the five errors that she addresses are aimed directly at these touring Democrats, who by implication have never seen any “federalists” close up:
1. Federalists are teeming with hate and rage;
2. Federalists do not believe in “fairness”;
3. Federalists do not have hearts;
4. Federalists devote all their energy to plotting for the reversal of Roe v. Wade.
It is her fifth “error,” however, that I want to discuss, and I will not even dwell on the fact that, contrary to what this tour was supposed to be about, it is not even directed to the clueless Senate Democrats on the tour. (If I were one of the Democrats on tour I think I would ask for a 20% refund, since I certainly didn’t need to pay Ms. Lithwick to tell me that federalists don’t have a monopoly on virtuous interpretation.)
5. Federalists have a monopoly on intellectually sound methods of judicial interpretation: Republicans in the Senate have urged, argued, and reinforced the notion again this week that conservative judges “apply the law” and liberal jurists “make it up.” Theories of judicial interpretation from the political right initially sound very attractive: Conservatives judges read the statutes, study the precedent, and then mechanically deduce what the law is, without regard to their personal preferences. Americans have been told countless times this week that the only alternative to this approach is a reckless, wooly, ends-driven method, invariably involving “penumbras and emanations.” As you gently pet the federalist here today, you may want to probe whether there are indeed “moral judgments” — to quote Yale law professor Anthony Kronman this morning — at the heart of their decisions. And if you suspect that all judges inevitably make such moral judgments, you might seek to uncover from where such moral judgments come. When your inquiry proves fruitless (i.e., you are stonewalled), you may wish to turn to other sources to refute the notion that nothing in a person’s history or ideology is reflected in his (or her) moral judgments.
This notion that judging is, to one degree or another, just politics in another venue, that the “ideology” or “judicial philosophy” of a judicial candidate is all-important, has become so pervasive as to be a commonplace. I believe, however, that it is profoundly wrong, or at least almost always overstated.
Let’s not even explore the assertion’s own epistemological problem — is it true, or merely a reflection of the asserter’s politics?
In any event, I believe tour guide Lithwick’s focus is misplaced. Assuming for a moment that the assertion that “moral judgments” are “at the heart” of all judicial decisions is true, asking “where such moral judgments come from” would lead — indeed, has led — many Democrats in need of this tour into a frantic search of every nook and cranny of judges’ — and would-be judges’ — minds for any trace of religious morals underlying their “judicial philosophy.” Secular morality, these inquisitors assume, is O.K., but decisions based on religious morality is unconstitutional. (But wait! I thought what is and isn’t constitutional is itself a political/moral question. Oh well….)
Even if “moral judgments” were the foundation of all judicial decisions, I think the more significant question to ask is not “from where such moral judgments come” — what difference does that make, aside from inciting religious-secular conflict? — but how much sway they have. Do they merely inform decisions? Influence them? Determine them? Are all decisions equally “moral”?
In response to my recent post on the political nature of much of the criticism of Judge Alito, a friend, anticipating the Lithwickian tour, emailed to ask,
is anyone not political when offering views on such things as presidential power? … I see no escape, whether one is blogging or deciding cases on the US Supreme Court, from political judgment.
My shorthand response to my Lithwickian friend is that however true this vision of law may be in theory, it is demonstrably wrong in fact. Many precincts in what passes for the real world, and even a few outposts in academia, are populated with people — many of whom are judges — who routinely “escape” from their politics. They are perfectly capable of believing, say, that abortion is good (or at least necessary) but that Roe v. Wade was a lousy decision, or that the Constitution gives far more, or less, power to the president than he should have.
It is of course true that the decisions of many judges are dictated by their politics, or “moral judgments.” That does not mean, however, that all decisions of all judges are, and it certainly does not mean they should be.
