SELF-UNDERSTANDINGS

"[T]hough it might have become academic orthodoxy that judges should be viewed realistically as policy makers in robes, when a judge takes this view of himself or herself in the performance of the judicial function, he or she becomes a cynic, not a realist. Thus, it is not surprising that an older understanding of the integrity of judging persisted, at least among judges whose experience with the varied texture of the law left them skeptical of reformist theory or whose character made them reluctant to replace impartiality with a political program, however well meant." -- James R. Stoner, Jr., Common-law Liberty: Rethinking American Constitutionalism (Lawrence, Kansas: University Press of Kansas, 2003), 123-4.

For social scientists, it is unwise to ignore the perplexities of self-description. This may make the task of quantification more difficult at times -- I've never tried it, but I'll bet it's hard to "code" for self-doubt, caution, the edge of shame, reluctance, evasion.

I want to try to "be fair to Republicans" and respond to some reactions to my recent posts on the Pryor nomination (scroll down to read them). As one astute and eloquent reader pointed out to me, it is not in the ambit of the self-understanding of many Republicans who care about the judiciary to say that judges should be chosen because of their "policy preferences." Instead, many folks think that judges should be chosen because of their dispositions and habits, in particular their disposition to "follow the law." I might add that "following the law" is usually set in contrast to the act of "making the law" or "legislating from the bench." (And from a non-partisan direction, if you specify the required habits as "judicial virtues," you have Lawrence Solum's approach to judicial selection.)

I want to put aside the way in which this dichotomy between "following the law" and "legislating from the bench" is bound up with a skepticism regarding rights claims and just say that there are some very interesting problems of priority here, I think. Let me make a somewhat contrarian suggestion that comes out of left field, perhaps, and that doesn't really address the center of the problem: one reason why the Supreme Court can be said to have betrayed the judicial function in Bush v. Gore is that it got involved in deciding the outcome of an election, and when that happens, it's a lot harder for people who pay attention to the judiciary to believe that their assessment of the Court's work is not mostly determined by their preference for a particular outcome. (I make a similar point about the California recall in a post below).

Taking sides in the "culture wars," as Justice Scalia has put it, is one thing; taking sides in an election is another because elections are closer to the core of democratic politics. In the 2000 election controversy, anyone with a sincere willingness to examine their own reactions to the case must come across a doubt about their ability to believe that the Justices were not influenced by party preferences and that their own assessments are not influenced by party preferences. That doubt threatens the ability of individuals to have a non-realist understanding of their own beliefs about law and faith in the possibility of non-realist judicial approaches.

Self-understandings require nurturing -- the cynic would say that they must be nurtured through willfully constructed absences, and the more kind would say that they must be nurtured through habits, customs, and shared practices. By choosing the winner in a Presidential election by a party-line vote, the Justices helped to sow salt in the soil that should have allowed non-realist self-understandings to grow. I would wager that a lot of the vehemence of the "get over it" line with respect to Bush v. Gore has its roots in a basic unease over the ability of non-realist accounts to explain the result in the case. It's no accident that the most prominent defender of the case, Judge Richard Posner, defends it on self-consciously pragmatic grounds, not grounds that Scalia-type conservatives would recognize as "legal."

Subtletly is needed to give self-understanding its due. I had a fun discussion today with a grad school colleague who studies congressional leaders, and we both agreed that one of the problems in many mainstream political science approaches to both Congress and the courts is a tendency to flatten out the phenomenon of the self-understanding of the relevant actors. For my friend, congressional leaders don't just care about exercising power -- they care about good policy. It seems to me shortsighted to ignore the claims of Senate Judiciary Committee members that they care about judges who will serve with integrity, for example, or the claims of judicial candidates that they sincerely aim to "follow the law." But just as in ordinary life you don't always take things at face value, I don't think that it is wise to ignore the associations of the phrase "follow the law" and "not legislating from the bench" with outcomes that conservatives also prefer, across a wide variety of domains. Do they prefer those results because they don't like the fact that judges have created new rights, or do they prefer those results because they don't think people should be engaging in same-sex intimacies, for example? I honestly don't know the answer to that question. In partisan mode, I'll push the explanation that focuses on outcomes, but that's not entirely satisfying.

NOTE: Time flies: my posts on Pryor are actually from last week, here, here, here, and here.