Passing Judgment

Atrios opines:

"Judge Roberts, What is Your Favorite Flavor of Ice Cream?" From what I can tell, that's the only question left which the Republicans think is appropriate for Democrats to ask in his confirmation hearing. It's apparently unfair or obstructionist or illegal or something to know anything relevant about a guy who's about to be appointed to a lifetime position on the Supreme Court.

That's certainly a fair representation of the GOP's attitude toward the confirmation hearings, at least if their public comments on the issue are to be taken at face value. However, this is by no means surprising. The great watchword of conservative jurisprudence is "strict". The intent of the founding fathers, the verbiage and rhetoric of the constitution, and the "letter of the law" (from notions of "zero-tolerance" to mandatory sentencing provisions) are to be adhered to strictly. While the current arguments swirling around the judiciary are seemingly characterized by a petulant defensiveness among conservative legislators ("we and we alone will determine what is and what is not legal!"), there is a long history of right-wing disdain for relativism in all its manifestations. Good is good, bad is bad, and the best judges (and Presidents) do little more than enforce the permanency of this dialectic.

But what about humanity? What about the subjectivity that makes mercy and compassion possible? The freedom of conscience so highly (and rightly) prized by Western democracies depends upon the ability to bend rules, carve out exceptions, make allowances, and generally draw distinctions in a progressive and relativistic manner. This is why ideology, whether fascistic or fundamentalist, is so widely acknowledged as antithetical to freedom; the ideologue is a dependable robot. Let there be no doubt: conservatives want dependability. I would hazard to guess that Robert's oft-referenced "lack of a paper trail" is less a consequence of his relative youth than of his native enmity for judicial partisanship; and the nomination of a judge without any opinions is a coup de grâce for such a President as ours.

Cass Sunstein wrote in an American Prospect article earlier this month:

In the law, predictability is usually important. People need to know the rules, and they cannot plan their lives unless they know the law in advance. We expect predictability from our trial court judges, who are meant to follow the law far more than to make it. And of course we want to be able to predict that Supreme Court justices will not ignore the Constitution, or refuse to protect free speech, or permit racial segregation. But in the hard cases that come to the Supreme Court, complete predictability is terrible, because it compromises judicial independence.

That's putting it mildly. Imagine what would happen if those who interpret the law operate with the same degree of (ever increasing) predictability as those who enforce the law. We're currently one of the most heavily surveilled populations on the planet. New technologies (digitized and interlocking databases, facial recognition software, DNA fingerprinting, etc.) are destined to radically alter the legal landscape of our society. Fewer infractions will go unnoticed, and those that are cited will be subject to ever more stringent punishments. Eroding protections based on "privacy" (a stated goal of conservative activists) will only speed up this process; lessening the capacity of those accused of wrongdoing to mount a vigorous defense (historically, in their rush to appear before their infantilized constituents as warrior-protectors, politicians have used being "tough on crime" as an excuse to weaken the defense; in their heated desire to act out their moral superiority over virtually all other forms of humanity, voters have demanded no less). Given these realities, to insist that courts be free from "partisan activities" is as naïve as it is detrimental.