Sunny Days in Heaven
Spiritual/Political/Philosophical Blog on the Nature of Truth and Falsehood and Heaven

Thursday, January 12, 2006  

Why do judges drift Left?

Some say it's the elite
they find themselves in, others say it is all about playing roles, others say it is about acquiring perspectives they did not have through their colleagues, but I say it's because too many people are soft headed and weak minded. That is, too many find it impossible to say to the poor, the weak, the marginalized, the oppressed - tough luck. I feel for you, but the fact is, we can't make life fair by altering society on your behalf. You have to win that on your own through your elected officials.

“We don’t really take a case in order to, quote-unquote, do justice” or “to make sure that the good guy won and the bad guy lost,” Scalia said.

Robert Bork provides a popular answer: justices “tend to drift to the left in response to elite opinion.” According to his theory, judges come to associate with and respond to “the intellectual class . . . dominant in, for example, the universities, the media, church bureaucracies, and foundation staffs.” Once seated on the court, right-leaning judges eventually adopt “the intelligentsia’s attitude, which is to the cultural left of the American people.”

As the left-leaning judge Guido Calabresi explains, “I am extraordinarily role-conscious. I think that we play roles all the time. What is appropriate for me as a judge, what is appropriate for me as a scholar, what is appropriate as a dean [of Yale Law School], and what is appropriate if I did more op-ed writing . . . are completely different things.”

That kind of elasticity which is common to men, often called compartmentalization, allows a man to make terrible decisions which are divorced from a greater reality because he has narrowed his role and how he defines a situation before him.

But more is at work than the desire to convey an appearance of objectivity. The job of judging, unlike most occupations, strongly encourages individuals to see sides of an issue that are otherwise easily ignored. And the information that emerges may help explain why juridical drift is so often leftward.

Justice O’Connor, in a tribute to the late Justice Thurgood Marshall, described the influence of his “special perspective” on her—an influence that appears to have contributed to her leftward trajectory: “At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”

You see, because Marshall suffered, society must be engineered so that it won't happen to him again even if society has already changed and would not make him suffer such as he had again.

I think TR had it right:

When Theodore Roosevelt, feeling badly betrayed by his erstwhile nominee, remarked of Justice Oliver Wendell Holmes Jr. that he “could carve out of a banana a judge with more backbone than that”. . .

If judgment is going to be all about acceptance by a Georgetown elite and a lot of touchy feely sadness about unfairness, then we will always be in trouble.

posted by Mark Butterworth | 2:06 PM |