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Underneath Their Robes

By Ruth Marcus
Tuesday, January 17, 2006

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.

marcusr@washpost.com

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