FindLaw's Edward Lazarus writes today that "If nothing else, the conservative infighting over Miers has revealed that the most conservatives do not believe their own hokum about judicial neutrality, any more than liberals do. In truth, they think that personal values are crucially important to judging, and that liberal and conservative judges alike inject these values into their decision-making. "
He concludes by nothing that "the debate among conservatives over Miers's nomination exposes a longstanding intellectual deceit in their professed allegiance to "strict constructionist" judges. At the same time, it offers an opportunity -- at Miers's hearing -- to treat the public to a candid discussion of how judges actually do their jobs, in place of the mythologized version of judging that emerged during the Roberts hearings."
4 comments:
Well, I like where you're going with this, although if there is infighting over the importance of her political conservatism, then by definition one side values judicial neutrality. Of course, if the disagreement is over the degree of her political conservatism, then they are a bunch of hypocrites.
Such little faith of ye, Cram, to disbelieve that someone can actually put ideology aside and argue an interpretation of facts and law (or anything really) in, if not a vaccuum, at least a displacement of one's own personal values and perspective. To question this is to question why doctors should tend not to treat family members or the truism of one's own lawyer having an idiot, for himself, as a client. There are professional codes that rely on objectivity.
If you don't take my word for it that a judicial outlook can be - if not objective - at least separated from a contemporary political goal (rather than how the framers intended), then why does the Federalist Society earn praise from Nadine Strossen and Alan Dershowitz for maintaining that it can and should be? The label conservative is not monolithic and the ABA is right to maintain that the independence of a judiciary in enforcing a stupid - if constitutional - decision, is precisely what pressures a legislature to not make stupid laws. Separation of powers might have something to do with the fact that the framers only set up one branch this way: (1) independence of judgment (tenure) and (2) an appointed and confirmed office (less political than an elected one).
To deny that one can acknowledge any degree of personal bias without successfully exercising any deliberate inattention to it is to relegate all of us to nothing more than slaves of acquired mental appetites. The Greek philosophers believed other kinds of personal slavery weren't mandatory; I merely ask you to try applying such a modern, if Nietschean view to this one. If ideology is destiny, I at least maintain that one can still decide either on their own.
But of course, that requires a belief in free will.
With your point of view I wonder what purpose you see in even having a legal system whatsoever. It's an interesting little philosophical exercise to posit that anything can mean literally anything else, and that nothing can have an accepted definition. But why not extend it to everything? (cause it's not useful?...) Why use language and do things like have discussions in the blogosphere if the words you use can mean any other thing? I guess someone could claim they can. How do you know we are really speaking "English?" What is "English?" Anything I or anyone else says it is? I guess Merriam-Webster, Oxford and Random House aren't as useful as I thought.
The point is to be able to understand each other. I suppose we can consider that a lost cause, but I'm not prepared to. And as long as we're going to apply personal anecdotes as truisms, let me say that I see evidence for not doing so every day.
I am not so futile in my view of the law to think that lawyers and judges shouldn't be able to understand each other by never agreeing on terms.
Perhaps it's not ideologies we're referring to so much as idees fixes.
And perhaps a given (or as you assert, any) judicial perspective might not be neutral, even in its historical evaluation of the development and purpose of law, but to say that an argument can't be objectively evaluated or objectively pursued - which is the logical conclusion of your assertion - is to say that logic, facts and reason are meaningless fantasies. And this is exactly the same line of reasoning haltingly pursued by the proponents of intelligent design.
I would at least have hoped that you supposed the constitution couldn't be interpreted in any way one chooses. And I would at least have hoped that you could have supposed that there might actually be such a thing as a good reason or argument for why a certain right or concept or legal term should be interpreted one way or another. Or even as you propose, any other.
It's good that we agree that the constitution can't be interpreted in literally any way in which one chooses, that it is the role of the courts to do so, that legal systems are indispensible to (administering justice in) modern nation states. However, when it comes to the role of impartiality, I think that judges can take the same standards of, say - putting the shoe on the other foot, or not judging with respect to persons, recusing oneself from cases in which one has a significant personal interest, etc. - and apply them to judicial philosophies. Again, here we either have to accept - and I'm not sure if your posts reveal that you do - that impartiality is, if not an attainable standard, one which professional professional codes are not unrealistic in demanding that the judiciary strives for.
Of course, constitutional interpretations, like any interpretations of anything, can be manifold and overlapping. And in conflict with each other at the same time. But althout multiple interpretations can be valid, that doesn't mean some can't be impartially shown to be stronger than others. And as judicial precedent - such as our non-obvious non right to spuriously yell fire in a crowded theatre, generally depends on cases being brought, the argumentative strength of an interpretation relies on how many explanatory precepts or realistic - if hypothetical - examples have been scrupulously considered in its construction.
Much of the rest of what you're saying makes a good point; reading a dictionary can't teach someone how to speak English. But interpretations of law, like interpretations of English, must be reliable, workable and widespread in order for someone to make sense of using either. The only point I'm adding is that I would believe their internal logic must also be valid.
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