Sunday, September 25, 2005

Roberts' "Detachment"

This morning on This Week, George Will pointed out some truly amazing excerpts from Dianne Feinstein’s press release explaining her opposition to Judge Roberts. Here is one such gem:

And I asked him about end of life decisions – clearly, decisions that are gut-wrenching, difficult, and extremely personal. Rather than talking to me as a son, a husband, a father – which I specifically requested that he do. He gave a very detached response.

To quote Will, What in the Name of James Madison does that have to do with judging? I guess Feinstein wanted Roberts to emote about “poor Joshua” in the tradition of Justice (I use this term loosely) Blackmun. The ideal of the judge as a detached decision maker- applying reason, history and text to particular facts to particular factual circumstances- was lost on the Senator.

Aristotle once explained that “The law is reason, free from passion.” What this quotation means is not that human beings should not be passionate about law, or that legal results cannot give us either joy or sadness. Rather that the law should be applied to each person in a fair, impartial and dispassionate way. This is the essence of the rule of laws, not men.


Charles Iragui said...


I agree with you. However, I do not believe that Feinstein is ignorant but rather that the role of the judge is not as settled an issue as we would wish.

What is the role of the judge? Your comment and Aristotle's maxim relate to the judge as a dispensor of law. The Democratic senators' repeated references to the "heart" and emotions leads me to believe that they, and behind them many more, think of a judge as a dispensor of equity. They would have us forget rules of law to rather reach to the apparent injustice before the court.

I would call this "solomonic justice": the judge as wiseman, delving into the tyranny within the facts.

Unfortunately, this is hardly the role of a justice of the Supreme Court. One could design a system of justice such that the parties came before a wiseman, but that is not our system.

My conclusion is that, since the advent of the school of legal realism, faith in "the law" has been undermined. Those who seem to have lost confidence in rules of law as the best means of bringing justice through the courts do not openly call for their repeal and we are left with half-hearted stewards.



GULC Law Student said...

They also didn't ask Ginsburg to answer any questions not as a wife, daughter or mother. Perhaps they assumed it was inherent in all of her answers.