Sen. Kennedy and all those frantically searching for ammo to fire at Judge Roberts’s nomination are at great pains to discover what Kennedy calls his “personal views” on a whole host of subjects, from Abortion to who knows where, probably Zambia.
I think we should call a temporary cease-fire in the back and forth over those views, or alleged views, to ask, Why? That is, what difference does it make what his “personal views” are? I think the answer to that question reveals quite a lot about one of the fundamental differences between liberal and conservative approaches to the courts and to judging.
Over the past generation or more, reinforced by a consensus intellectual style (often approaching an orthodoxy) among liberal academics in law schools and elsewhere that ranges along a spectrum from a sort of soft relativism all the way over to a hard post-modernism, most liberals today assume — and hence feel no need to argue or demonstrate — that “objectivity” is suspect or non-existent, that “ideology” is all-controlling. Thus when a judge “interprets” “the law,” the interpretation is everything, the law — as a separate, objectively existing entity — is nothing, a blank canvas on which interpretation paints the picture the interpreter prefers.
I am talking about something much more fundamental than the liberal critique of originalism (who can know what those dead white men really meant or intended?) or of textualism (18th century words do not have a clear, objective meaning that we can discern today, and even if we could discern their meaning there is no good reason for us to be bound by them). Because of their declining belief in even the possibility of objectivity, liberals today often look at “the law” the way Gertrude Stein saw Oakland: there’s no there there.
Thus it is perfectly understandable why liberals care so much about Roberts’s “personal views.” Since they believe that courts are nothing more than political arenas and judges just politicians wearing black robes, they see no difference between appointing a judge and electing a legislator or president. It’s all just politics.
It is certainly true that not all liberals or all Democrats have succumbed to this relativist, post-modernist outlook on the world, nor are all conservatives or Republicans immune to it. Still, I think it’s clear that most conservatives continue to profess a belief in objectivity and a belief that judges both can and should separate their “personal views” from their view of what the law requires. In the cliche, they believe that judges should apply the law, which of course requires interpreting it, but that they should not make it. They continue to see a difference between interpretation and creation.
Sure, some of them are lying about what they believe, and others are inconsistent in applying what they do believe. And it is also true that not all liberals or Democrats have sunk into the relativist, post-modernist swamp. But still, if you believe there is not a significant difference between liberals and conservatives on whether or not it is either possible or desirable to separate “personal views” from interpreting “the law,” you and I don’t live in the same universe.
Finally, to wrap this up, let’s look at two Supreme Court nominations, one actual and one hypothetical. First, the actual: Ruth Bader Ginsburg. Much has been made of the fact that her record placed her far “out of the mainstream” (protecting prostitution, lowering age of consent to 12, doing away with Mothers Day, Fathers Day, allowing bigamy, etc.; see here for examples), and also that she consistently refused to answer any questions about her views on various subjects, although she did say that she favored abortion. Nevertheless, the Judiciary Committee voted her out of committee unanimously, and she was approved by the Senate 96-3. Were those anti-abortion Republicans who voted for her stupid? Or might they have believed that she was competent enough and professional enough to separate her personal views from her judicial opinions?
Now for the hypothetical: Mario Cuomo has been mentioned more than once as a potential Democratic nominee to the Court. He has been quite articulate in stating that he personally agrees with the Catholic Church’s position on abortion (as I discussed here):
We [he and his wife] thought Church doctrine was clear on this, and — more than that — both of us felt it in full agreement with what our hearts and our consciences told us. For me, life or fetal life in the womb should be protected, even if five of nine Justices of the Supreme Court and my neighbor disagree with me. A fetus is different from an appendix or a set of tonsils. At the very least, even if the argument is made by some scientists or some theologians that in the early stages of fetal development we can’t discern human life, the full potential of human life is indisputably there. That — to my less subtle mind — by itself should demand respect, caution, indeed — reverence.
[Editorial Note, 7/30/16: Alas I just discovered this post was inadvertently truncated here. To see my criticism of the Cuomo position, a position followed slavishly by virtually all subsequent Catholic Democratic politicians — Biden, Kerry, Kaine, et al. — read the entire Cuomo post linked immediately above and subsequent ones developing that argument here, here, here, here, and here.]