Tuesday, June 29, 2010

Grumpy observation of the day

I've been listening to some, not all, of the Kagan hearings. Today Kagan said (among many other things, of course) that a judge's or Justice's personal moral values should have no connection to her judging, and that constitutional adjudication is "law all the way down" (while acknowledging that many difficult legal questions arise on which reasonable judges can disagree about what the law requires, etc.). The notion that a judge's personal moral values have, and should have, absolutely no connection to his or her judging in any constitutional cases seems divorced from reality, and when an extremely intelligent person is put into the position of having to say something like this, perhaps the time has come to get rid of public confirmation hearings for Supreme Court nominees.

At least Kagan did say forthrightly that the original intent of the framers is only one factor that should be considered, and not always the most important or appropriate one, in deciding cases; she pointed out that many of the Supreme Court's free speech cases have interpreted the First Amendment in more expansive ways than the framers would have. That was a point well made -- and, incidentally, it served to highlight the absurdity of some assertions made by Senators about the framers. Sen. Cardin, for instance, said that the framers would have agreed with Brown v. Bd. of Education. This statement is either fairly pointless -- requiring one to ask what Madison, had he been alive in 1954, would have thought of the Brown decision -- or completely ahistorical. As anyone who has ever taken a junior high school civics class or a basic U.S. history course probably recalls, the Constitution tolerated not only segregation but also slavery (though it did provide for the eventual abolition of the slave trade), and it took the Civil War, and the post-Civil War amendments to the Constitution, to change that. The abolitionist William Lloyd Garrison viewed the original Constitution, because of its failure to confront slavery, as "a covenant with death and an agreement with hell." It's not necessary to endorse this precise language to see that the pre-Civil War Constitution was a deeply flawed document, something that should be kept in mind whenever people start blathering about the supposedly sacrosanct intent of the Framers.


hank_F_M said...

The notion that a judge's personal moral values have, and should have, absolutely no connection to his or her judging in any constitutional cases seems divorced from reality,

I would think that a personal moral value against bribery, favrotisim, and such like would be a requirement.

LFC said...

Indeed, and I'm sure Kagan would agree with that. But what she meant, I think, is that a judge's moral beliefs about, say, the relative weights to be accorded liberty and equality as basic values should not enter into judging. Every Supreme Court nominee says something like this: It's all law, and a judge's values and beliefs have nothing to do with it.

But when one is called upon to interpret constitutional provisions that are phrased in general terms, and when the relevant precedents and other sources can support more than one interpretation, then a judge's values must enter into the picture at some level it seems to me, either consciously or unconsciously. The media talk about "liberal" and "conservative" blocs on the Court, but the divisions often have to do with different ideas about the weights to be given to competing values. In Citizens United, for instance, the competing values were maximum freedom to speak for everyone at any time (including corporations and other associations) versus rough equality of access to the 'marketplace of ideas,' particularly during elections, plus a concern about the dangers of concentrated power in a democracy. These can be thought of as moral values, and I don't see how a judge's personal beliefs about the relative importance of these values can fail to have some impact on his or her decision in this kind of case. Yes, there were other considerations: degree of deference to Congress, how one reads the Court's line of precedents in this area, etc. But in my view it is inaccurate to say that constitutional adjudication is law and nothing but law, and that a judge's basic political and moral philosophy is entirely irrelevant. It is not entirely irrelevant.

hank_F_M said...

Well, of course.

In the pet peeve department.

In the old fashioned technical sense “moral” refers not to values, but to a free knowing human act, with good or bad intent. Hopefully all of the justices, even when they disagree, are sober, have done their home work and are acting to decide the case properly. I.e. make a moral decision in the positive sense of the phrase. I think in the Supreme Court we have been very fortunate.

I do know what she means, I am sure she is better educated on the law than philosophy.

LFC said...

Lest I leave the wrong impression, I should say that I was very impressed with certain parts of her testimony (again, I only heard some of it).

As for the use of "moral," I'm too tired to go into that right now, so you can have the last word, at least for the moment.

I may return to the general topic of the post at another time.

LFC said...
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