Either I’m a leisured aristocrat or a political geek, but I’m probably one of the few Americans this week who has the time and interest to watch C-SPAN’s coverage of Elena Kagan’s Supreme Court confirmation hearing. She once remarked that the hearings are a “vapid and hollow charade,” and hers is no exception. But the event matters because Americans are exploring an important question: What kind of judges do we want?

In his incisive opening statement, Senator John Kyl (AZ-R) presented a choice between a results-oriented judge (pragmatism) versus a neutral arbiter (originalism), although there are other theories of constitutional interpretation. Click here for helpful definitions.

The standard for a results-oriented judge, according to President Obama, is empathy: “a standard where ‘legal process alone’ is deemed insufficient to decide the so-called ‘hard cases’; a standard where the ‘critical ingredient is supplied by what is in the judge’s heart.” Obama has repackaged the standard, saying judges should have “a keen understanding of how the law affects the daily lives of the American people . . . . [and] know that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” Kyl insists that this standard is wrong: “Judges are to apply the law impartially, not take on social causes or cut down ‘powerful interests.’ While they may disagree with legislative solutions to problems, it is not their prerogative to ‘fix’ inequities.”

I’m perplexed by the debate between conservatives who argue for impartial judges and progressives who argue for empathetic judges, as if these methods and temperaments are mutually exclusive. Shouldn’t we want a judge who strives for impartiality and shows empathy? Shouldn’t we want a judge who avoids the twin dangers of impartiality that denies empathy and empathy that distorts impartiality? Shouldn’t we want a judge that is neither an automaton nor a sentimentalist, but a citizen who respects the rule of law in her nation?

Much of this debate hinges on whether impartiality and empathy are viewed as prescriptive standards or descriptive realities. If they are prescriptive standards, we need to evaluate how it’s possible to achieve greater impartiality and whether the empathy is for one’s own kind or for others. If they are descriptive realities, then we are acknowledging a challenge that faces every judge of every political stripe. Stanley Fish rightly claims, “No one can completely divest herself of experiences life has delivered or function as an actor without a history.” Put differently, to be human is to be empathetic. Striving for impartiality, the judge must perceptively recognize how her sympathies form and deform her judicial temperament and interpretive practices.

Against conservatives, there’s no access to the constitution as it really is from a framer’s point-of-view, no skyhook provided by a judicial science that frees the judge from the contingency of being acculturated. Against progressives, there’s no excuse for ignoring the weight of the constitution, shirking judicial precedent, and giving license to empathy without rational scrutiny. Thurgood Marshall – one of Ms. Kagan’s legal “heroes” – erred when he said, “You do what you think is right and let the law catch up.” The best kind of judge, in my estimation, is someone who doesn’t pit righteous action against legal fidelity but pursues both.

UPDATE: During day three of her confirmation hearing, Elena Kagan refuted her legal hero’s judicial philosophy in a remark to Senator Ted Kaufman (D-DE), “When you get on the bench, when you put on the robe, your only master is the rule of law.”


Wall Street Journal: Elena Obama (May 11, 2010)

New York Times: Stanley Fish, Empathy and the Law (May 24, 2009)

New York Times: Stanley Fish, Why Bother with the Constitution? (May 10, 2010)

New York Times: Stanley Fish, Styles of Judging: The Rhetoric and the Reality (June 14, 2010)

Cross posted at Mere Orthodoxy

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