Two new essays by leading legal academics—a conservative and a liberal—nicely frame the debate over Justice Sotomayor’s confirmation testimony and President Obama’s “empathy” standard for selecting Supreme Court justices.
Let’s start with the liberal, NYU law professor Ronald Dworkin. In an essay in the New York Review of Books, Dworkin observes that Sotomayor’s confirmation hearing “could … have been a particularly valuable opportunity to explain the complexity of constitutional issues to the public.” But, alas, Sotomayor “destroyed any possibility of that benefit” by her repeated insistence that “her constitutional philosophy is very simple: fidelity to the law.” According to Dworkin:
That empty statement perpetuated the silly and democratically harmful fiction that a judge can interpret the key abstract clauses of the United States Constitution without making controversial judgments of political morality in the light of his or her own political principles.
In Dworkin’s view (which he sets forth only briefly in this essay but which he has advocated much more fully elsewhere), key constitutional provisions “are drafted in abstract moral language.” The effort by the “conservative theory” of originalism to escape this reality “can itself be defended only by appealing to highly controversial political principles about the nature of democracy and about the role of intention in constitutional interpretation.” And originalism “is unhelpful anyway because the authors of the abstract clauses almost certainly intended to say what their words naturally mean”: “The clauses, read literally, … require interpreters to develop what they believe to be the best theory of equal citizenship.” (Emphasis added.) Therefore, a “genuine constitutional philosophy” “must include some at least rough theory about the best conception of democracy, including the best understanding of the individual rights that must be secured by law, as a matter of justice, if government by majority rule is to be fair.”
In sum, Dworkin decries the “foolish myth” that “judges’ own political principles,” “moral opinions,” and “personal convictions” are irrelevant to the task of constitutional adjudication” (even as he states that Sotomayor was “well advised to embrace that myth” in order to smooth her already virtually certain path to confirmation).
Stanford law professor (and former Tenth Circuit judge) Michael W. McConnell offers a very different take in the course of his essay in the October 2009 issue of First Things reviewing Philip Hamburger’s outstanding book Law and Judicial Duty. (That essay isn’t online yet, and probably won’t be online for a while, but if you’re not a First Things subscriber, you should be.) McConnell properly agrees with Dworkin that Sotomayor’s professed “fidelity to the law” is, as he puts it, “more platitude than commitment” and wishes that senators had asked Sotomayor “why a judge should not decide hard cases based on her own moral judgment.” But, unlike Dworkin, McConnell believes that question has a compelling answer, an answer rooted, as Hamburger’s book shows, in the “traditional American commitment to the rule of law” and in “an ideal of judging as old as the republic.”
According to McConnell, “No one at the founding”—nor, I think it’s safe to impute to him, in the post-Civil War, and post-Dred Scott, era, in which the Fourteenth Amendment was adopted—“appeared to take the now popular academic view that the Constitution was deliberately framed in heroic generalities precisely to give federal judges a wider scope for discretion”:
Rather, as Hamburger emphasizes, when objective sources of constitutional interpretation run out, judges in the traditional vein do not seize on ambiguity to impress their own vision of good government on the nation. Instead they defer to legislative judgments and intervene only when constitutional principles are clear. Vagueness is not an excuse for judicial creativity but evidence that legislative action is within the legitimate range of constitutional meaning. Thus, in hard cases judges consult first the language of the Constitution, understood in light of its public meaning at the time of adoption. If there is a legitimate range of meaning, judges look to established practice and precedent to narrow its scope. But in the end, if constitutional meaning is uncertain, judges look to legislative judgments as the source of law rather than to their own preferences….
[T]o allow judges to decide cases in accordance with empathy, or to advance their own, necessarily disputed, notions of justice and rationality above the dictates of the law, would accord the judiciary a degree of discretion that is incompatible with an understanding of law based on popular democratic authority.
Regular Bench Memos readers won’t be surprised to learn that I think that McConnell has it exactly right.
I’ll limit myself to two additional observations on Dworkin’s argument. I’m surprised to see Dworkin contend that originalism depends on a theory “about the role of intention.” That’s true of what’s commonly called the “original intent” species of originalism, but not of the now-predominant “original meaning” species. (For a brief explanation of the distinction, see this essay of mine.) And far from “appealing to highly controversial political principles,” original-meaning originalism, as law professor Lawrence Solum explains at length, is “grounded in both common sense and widely accepted theoretical views about meaning and the nature of law.” (My “Are You an Originalist?” essay aims to provide a simple demonstration that originalism comports with the common-sense understanding of language and the law.)