“Umpire” or “Empathy”: What Do We Want in a Supreme Court Justice? | Transcript Part II
SF: In a way what John has just said takes us back to a quarrel that has been going on in jurisprudence since at least the beginning of the 20th century. Many of you know the writings of the great legal realists. I'm thinking especially of Felix Cohen's enormously entertaining essay, "Transcendental Nonsense" in which Cohen complains that the law continually trans-substantiates the facts of real life into its own circular and stipulated vocabulary. Then on the other side, there are people ... and I'm probably one of them ... who would say, "Yeah, that's right! That's what you're supposed to do." So the question here is: is law autonomous? Is law an autonomous system in the sense that it operates largely within its own set of definitions and within its own history rather than the history which it impacts when decisions are delivered.If the law is an autonomous system, this does not mean that the facts of experience never enter into the law's decision. But it does mean, and this was what Felix Cohen was complaining about, that when the facts of experience do enter into the law's proceedings, they enter as legal facts, rather than as facts that would be recognized by persons who are not legal academics or lawyers. I am not a lawyer myself, but I know that often when clients come to consult with lawyers, clients tell a story about what has happened to them, or about what they desire. Clients always have a sense of what the important, key moment in the story is, and, often lawyers have a sense, also of what is key, but it is not one that matches the client's. Because the lawyer is thinking, "Under what legal rubric can I bring this set of facts?
DL: One more question.
[Audience member]: How can ideas of empathy and related terms be rehabilitated especially in the minds of non-law-fluent audiences? It seems to me that in the last 25 years, the school of thought that leans towards strict textualism has had several very articulate and several very convincing spokespeople, especially for those invested in Supreme Court nominees and legal jurisprudence, but who don't necessarily know many of the cases behind them. What you seem to have, especially in a non-lawyer audience, is the idea of "the stricter the better." When you're being more strict, you're being more honest. The instant you bring in elements of empathy and related terms, you might achieve an outcome you want, but you're somehow doing something unseemly. I was wondering if you had any ideas as to how you might change that dynamic and perhaps bring the idea of a more consequentialist jurisprudence into vogue, instead of merely having that syllogistic machine that you referenced before?
BN: Well, you ask maybe the hardest question I know as a test case lawyer. For me, the way I deal with the textualist, first you hit them over the ... no, you deal with a textualist by I pointing out the limits of textualism. Textualism purports to be some kind of constraint that really controls a very substantial number of cases. I have lots of fun asking textualists what does process of law mean? What cruel and unusual punishment mean? If they could just write it down on a piece of paper, I promise I will live by that. But of course you can't. Textualism doesn't deal with the kind of opened textured phrases that we use in Constitutions.
My favorite way of dealing with a textualist is the great HLA Hart hypothetical. Somebody passes a statute making it a felony to introduce a wheeled vehicle into the park. How many years does the ambulance driver do? When the ambulance driver drives into the park to try to rescue somebody who's had a heart attack? Has he violated the statute? The statute that says "wheeled vehicles from the park?" It can't be that way. So textualism can't solve so many hard questions. The more specific you get with a textualist, the more you show that there has to be something else.
Stanley, over the years, has been brilliant in arguing that it's intentionalism. Why'd they pass this thing? To get a little peace in the park. They didn't pass it so that people would die of heart attacks in the park. So = it's clear that you exempt that person, and once you admit that you exempt that person, then you have to ask whether a motor scooter or a bicycle, or a racing bicycle, or a tricycle, are all wheeled vehicles. Textualism doesn't solve that. You've got to go beyond that. The moment you go beyond that, then you say to the textualist, well, then you don't think your knowledge of the world, your knowledge is relevant to the decision-making process? If it's an honest person, the person will retreat. Textualism has retreated. Retreated immensely. Modern textualism is not a hell of a lot different than purpose-ism these days. The intellectual tyranny of the textualists is over. It's absolutely over. They themselves admit that their argument can't answer too many, too many questions.
SF: I certainly agree with that as a conclusion in the philosophy of language. But I took your question to be part a question about public relations. And as a public relations matter, arguments against textualism are going to lose every time. Unless you can assign everyone in a country to read the brilliant essays of mine, for example = that Burt was referring to, there's a certain common sense, rough, ready, Anglo-American knock-down empiricist appeal about textualism, and no matter how many of us demolish it, no matter how many times Scalia demolishes it himself in the unfolding of one of his opinions, it will rise again, and it will triumph.
JP: Look, if the President nominated an on-paper sensationally well qualified graduate of NYU Law School who had come here on a special scholarship, and then returned to her country, let's say, Bulgaria, and had spent 20 years being a sensational judge in Bulgaria, whatever their law is, and he said, "But she's just absolutely brilliant! I understand she applies the law in Bulgaria it's just unbelievable how good she is ... "You know, there's just not a chance. It just doesn't add up to enough. You want someone who can appreciate who we are. And who we are requires you to do more than just know how to do textual analysis, or go to law school; you really need to know who we are to appreciate what this dispute is really about, what those words mean to people in the street, how this would work if you actually ruled this way or that way, and I'm saying that in order to really appreciate that in our very complex democracy, you actually have to be able to appreciate all the elements of our democracy. If you just take the brilliant Bulgarian jurist, not a soul would think that would be good enough, but that's why. It's because whatever that is, it doesn't attach itself to who we are. The "we" is what is important, for the sake of our democracy, for justices to consider and understand.
Audience Member: I want to bring this back to the question which Mr. Fish raised at the beginning about Barack Obama's vote against John Roberts. How would you advise a Senator who he has foresight as Obama did, that Roberts was very predictable. He would vote for business in almost every case where there was a business issue, against a woman who lost her arm in an accident, against affirmative action, he would read opinions like Brown v. Board of Education as justification for attack on school integration. And so forth. How would you vote and how would you be exercising your obligations to give advice and consent as well as your obligations to your constituents and the people who elected you, that don't want a judge who is brilliant, a graduate of the Harvard Law School, just like you are, but who will come out in every policy issue precisely against everything you believe in.
SF: For me that's all too easy to answer. That means my answer, because it comes readily, is suspect. But I'll give it anyway. Everything that I write, not only about these matters, but recently about higher education, and what professors should and should not be doing in the classroom, depends on the idea of the distinctiveness of tasks. It seems to me that when you are in a position to be exercising some authority, whether it's in the judicial area, or educational or any other, the first question you have to ask is what is it that I'm being paid to do here? What is it, what obligation, what charge have I received? It seems to me in that situation, given the scenario, or hypothetical that you sketched out, if there were a nominee in front of me, and I was persuaded that that judge would in subsequent years deliver opinions that I found antithetical to everything I believed in, but on the other hand I believed that he was well qualified in the appropriate ways, I would vote for him because, and this is my bottom line, at that moment, that's my job. I believe that you do the job that is appropriate to the task you are then engaged in. Which means, you compartmentalize your life. I'm a big, big, big fan of compartmentalization, even though I can't pronounce it.
JP: I would add something. Certainly we want justices who are extremely well qualified in technical aspects of the law. But what was missing from the Bulgarian judge is something I think is required to be a justice of the United States Supreme Court. If that were lacking, that would be a failure of qualifications.
BN: I would do all I could to win the next Presidential election, and then hope that Stanley and me and the rest of the Senate Judiciary Committee would recognize that they had a duty to vote in favor of my candidates just like I would have voted in favor of theirs.
DL: Thank you John Payton, Stanley Fish and Burt Neuborne for what really has been one of the most interesting conversations I've heard about this. Thanks to the Brennan Center for putting it together, and thank all of you for your good questions and your very patient listening.