Posted by
Zentrist on Monday, May 11, 2009 11:02:47 PM
First, this article has to be among the best to come out today. The subject matter pretty much guarantees that. I'm convinced--and it's a shame this man was not put on the Supreme Court. I only take issue with the idea that any Court nominee has ever been or ever will be "objective." Or "impartial."
Clearly, some readers are more rigorous, more "rational" than others. Some are more in tune with the "standard of nature" than others and with "THE LAW" than others. Nevertheless, in my opinion, this ideal of "objectivity" and "impartiality" is just that--an ideal.
I believe that a careful reading of Lincoln's papers or Roberts's opinions, or Alito's or Souter's or Arnold's will show: Reason and "nature" were indeed "standards," but so were instincts, that is, powerful forces that always "push" the argument in the direction of an interest. The character of that interest is of the utmost importance. There are no purely "legal phenomena," as the philosopher Nietzsche might say; rather, there are only interpretations of "legal phenomena." Yes, this is "legal positivism." Or perhaps even "legal relativism." But there is an "on the other hand," as usual. In my way of looking at this issue of "objectivity," the interpreter must try to be fair; that is, he or she must avoid an unrealistic Absolutism, on the one hand, and an equally unrealistic Relativism, on the other. Both ideologies, it seems to me, spell TROUBLE.
The trouble with the principle of "impartiality" praised by Paul Greenberg is that it assumes that human beings sit in judgment--as if they were sitting upon some celestial rock, utterly detached from the bodies we have, the air we breathe and the histories of lived experience that we bring to a "question." To put it more incisively, the judge brings a certain amount of baggage with him into the decision. He is not totally "free," not completely, one hundred percent "rational," like an angel or disembodied, non-historical, non-flesh-and-blood human. I mean, look at Judge Judy or Judge Mathis or Judge Penny. There is, played out before our eyes, a real justice, a very fair decision. I would also say that, on Court TV, we see a kind of "impartiality." However...
But we certainly also see the personality of the judge. And that judge brings his or her LIVED EXPERIENCE into the courtroom. Not his "light." Not her abstract "metaphysics."
That experience involves the "standard" of reason, nature, law, custom, tradition, rights, habits good and bad--and practice. Now, what is the "standard" for "good," and what is the Standard for "bad"? This standard or these standards, again, have to do with a combination of reason and instinct, prudence and custom and practice. Judge Karen's experience as a whole--is something she brings with her into the courtroom. It is something real and down-to-earth, not something that exists only "in her head."
I'm reminded here of a great French philosopher as well, Maurice Merleau-Ponty. Especially his masterpiece, "The Phenomenology of Perception." In it, if memory serves me well, the great thinker implicitly cautions the "reader" of cases to steer a middle course between the Scylla of absolutism and the Charybdis of relativism. Therein lies the tale--and the "truth."
Or, as a wise school administrator once informed me, as I had to face the music about a certain dispute: "The truth is probably somewhere in the middle."
I'm not sure about that, but I'll leave it at that, anyway.