The Search For Just The Right Prejudice


Justice David Souter’s abrupt announcement of his resignation from the United States Supreme Court has the bar in a collective psychosis. There are forces unleashed akin to those stirring in the breast of children of divorcing parents. What a pity.

Who should replace Souter? The legal interest groups have their favorite picks and candidates targeted for crucifixion. Lawyers are pushing and shoving to direct the tsunami this way and that.

All this hubbub carries the risk that we will forget what a judge is and is not. Indeed, it has us forgetting what law is and what is the role of lawyers in our society.

Truth be told, I am afraid of any lawyer with a vision of a good society tucked away like a sugar plum to be savored at recess. The law is not a philosopher’s stone. It possesses no Archimedean point capable of moving the world. What moves the law into action is conflict, and the law is simply our society’s manner and means of resolving conflict. Because certain sorts of conflicts are foreseeable, lawmakers enact statutes. Because some conflicts recur again and again, judges rely on settled doctrine. The broader context in which our institutions work and struggle are set forth in a constitution, which is endlessly interpreted on a case-by-case basis. All is, and remains, in flux.

The best lawyer is not the one with the broadest theory of what the law should do. No, the best lawyer is one with sufficient knowledge and experience to have a sense, a judgment, of how best to accomplish his client’s interests.

The legal interest groups forget this. They possess litmus tests, trawling the nation in search of clients trapped in struggles that provide the interest group with a forum. I pity the poor litigant who becomes raw meat for political lawyers.

When these interest groups turn their collective fantasies to the process of vetting judges, I shudder. Lawyers are mere handmaidens not brides.

Call me naive, a fool, a dreamer, but I have a more exalted view of the law and of judges. Law is the best means we have of resolving conflicts; a judge is the person entrusted with making judgments on what legal doctrines best address the disputed facts in a case. A good judge does this without prejudging matters on an ideological basis. It is the litigants’ role to frame the issues as they see fit. It is the judge’s job to rule, to make binding decisions with regard to what justice requires given the law and facts as the judge sees them. Because this is difficult work, we permit appeals, expanding the number of judges on each tribunal until we reach the highest court in the land.

A good judge is defined from beginning to end by the content of their character. Period. Attempts to identify and classify judges by their politics and commitments on this issue and that is mere ideological warfare. Thus, endless debates about originalism and activism are really canards. Originalism is merely another species of activism, this time in disguise: It is a theory of judging that requires a commitment to principle before a judge even hears a case or controversy.

I like the sound of President Obama’s commitment to an empathetic pragmatist as a jurist. Such a judge would care less about the intentions of the dead and the demands of the ideologues than about what the case or controversy at the bar requires as a matter of fact and law. Finding such a justice will be difficult given all the pushing and shoving going on by lawyers blinded by ideology.

I say invite neither ACLU nor the Federalist Society to the next confirmation hearings. We don’t elect federal judges for a reason. The campaign to commit the appointment process into an election by another means is saddening.

Reprinted courtesy of the Connecticut Law Tribune.

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