Wednesday, May 7, 2008
Thanks to Rob for his as-per-usual thoughtful response to my invitation that we discuss Sen. Obama's recent statement about the role and work of courts. After incorporating by reference the disclaimers and "givens" in my own post on the subject . . . a few thoughts:
Rob quoted Sen. Obama's earlier statement that, in about 5% of cases, “you’ve got to look at what is in the justice’s heart, what’s their broader vision of what America should be,” Obama said, adding that justices should understand what it’s like to be gay, poor or black as well. I'm not sure, but I'm inclined to disagree. Now, we all know that, in fact, judges are not and cannot be robots or automatons. Still, it seems to me that we should want judges to understand their role as one that calls on them to try not to consult their "broader vision of what America should be", but should instead understand it to be the role of politically accountable actors to engage in such consultation. (Again, no one really thinks, and therefore I don't, that judges' worldviews and experiences don't shape, at all, their enterprise of identifying the law's binding content and applying it.)
Rob and I agree that "the notion that any judge should subvert the rule of law in order to establish a particular substantive vision of justice is problematic." My own reading of Sen. Obama's statements during the confirmation processes involving Chief Justice Roberts and Justice Alito make me think that, in fact, he does believe that the merits of a judge's work are closely tied to the whether the substantive outcomes in the judge's cases accord with Sen. Obama's "particular substantive vision of justice". (See, e.g., this statement, explaining his vote against Justice Alito.) (And, there's the fact that, for Sen. Obama, a judge's commitment to standing for social justice is one that will also lead him or her to maximally protect abortion rights.) Now, to be clear, I have no doubt that some "conservative" Justices, commentators, politicians, and law professors make this same mistake. My point here is -- it really is -- less a partisan, "Obama v. McCain" one than a broader one about what we think the role and vocation of a judge does and should involve. It seems to me that, in a democracy governed by a written Constitution, a federal appellate judge ought to try, to the extent she can, not to ask "what it is like" to be _____. And, it seems to me that this way of thinking about such judges' work and role is most consistent with Catholics' rule-of-law and justice commitments. Thoughts?