On Constitution Day, Sept. 17, Justice William Brennan delivered the 42nd annual Benjamin Cardozo Lecture at the Association of the Bar of the City of New York. It is the oldest bar association in the country, having been founded in 1870 because lawyers in the city were critical of the way judges were being selected and wanted to exercise some organized clout in the matter.
This year, over the objections of some of its members, the New York Bar Association has declared its opposition to the confirmation of Robert Bork on the ground that his judicial philosophy runs counter to "many of the fundamental rights and liberties protected by the Constitution."
Justice Brennan did not say a word about Judge Bork. The subject of his lecture was more extended in time: "Reason, Passion and the Progress of Law."
Cardozo, said Brennan, "awakened America to the human reality of the judicial process. From him we learned that judging could not properly be characterized as simply the application of pure reason to legal problems, nor, at the other extreme, as the application of the personal will or passion of the judge."
In Cardozo's time, a judge "was thought to be no more than a legal pharmacist, dispensing the correct rule prescribed for the legal problem presented. . . . Into this formalist conception of law Cardozo breathed the wisdom of human experience."
Judges, said Cardozo, could no more distance themselves completely from their personal experiences than they could pretend to be aloof from "the great tides and currents which engulf the rest of men."
Heartily agreeing with Justice Cardozo, Brennan emphasized that for a judge, "sensitivity to one's intuitive and passionate responses and awareness of the range of human experience" is "not only an inevitable but a desirable part of the judicial process." Only by being open to "the concrete human realities" of the cases before him can a judge "come to understand the complex human meaning of a rich term such as 'liberty,' and only with such understanding can courts fulfill their constitutional responsibility to protect that value."
On the other hand, judges fixated on the illusion of "abstract rationality" fail to understand that "reliance on formal rules alone" is never sufficient "to be faithful to the vision of the Framers."
The people in the cases heard by the Supreme Court never stand before the justices but, says Brennan, they are surely there -- if you can hear them deep inside the briefs.
I thought of Brennan's lecture when Shirley Hufstedler -- a former federal court of appeals judge whom Cardozo would have recognized as kin -- testified against Bork. She spoke of Bork's "quest for certitudes" in the Constitution as a way of avoiding "having to confront the grief and untidiness of the human condition." Bork, she noted, talks about judging "as an intellectual exercise" and shows "a lack of appreciation of what happens to real human beings."
And in his own testimony, Bork did little to dispel Hufstedler's characterization of him. When Sen. Alan Simpson asked Bork why he wanted to be a justice of the U.S. Supreme Court, the nominee answered that he had spent his life "in the intellectual pursuits of the law" and that he liked the give-and-take and the intellectual effort of the courtroom. To be on the highest court, moreover, "would be an intellectual feast . . . to read the briefs and discuss things with counsel and discuss things with my colleagues."
Also, Bork went on, "I would like to leave a reputation as a judge who understood constitutional governanceand contributed his bit to maintaining it. . . ."
Not a word about the challenge of "the concrete human realities" of the cases he would be judging. Nothing of the chance to be exposed to so much of "the range of human experience," as Brennan puts it, that can be deeply illuminating if the judge is aware of that range in the very chords and discords of the law.
On Constitution Day, Brennan said: "The Framers bequeathed to us a vision of rulers and ruled united by a sense of their common humanity. In this vision, the essence of the relationship between state and citizen is the relationship between one human being and another."
Robert Bork, however, brings to mind the judges described by Cardozo as standing aloof on "chill and distance heights." Judge Bork, way up there, can say of his ruling in the American Cyanamid case: "I suppose the five women who chose to stay on that job and chose sterilization, I suppose they were glad to have the choice."