Magazine article First Things; A Monthly Journal of Religion and Public Life

The Book of Judges

Magazine article First Things; A Monthly Journal of Religion and Public Life

The Book of Judges

Article excerpt

The Book of Judges LAW AND JUDICIAL DUTY by PHILIP HAMBURGER Harvard, 686 pages, $49.95

Reviewed by Michael W. McConnell

RECENT EVENTS HAVE brought the ordinarily neglected subject of judicial duty to the front pages. On the campaign trail, Barack Obama told us that in choosing judges- and especially justices of the Supreme Court - he would look for "somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges."

When asked her view of this empathie ideal during her confirmation hearings before the Senate judiciary committee, however, President Obama's nominee to the Court, Judge Sonia Sotomayor, declined to embrace the president's position. "I . . . wouldn't approach the issue of judging in the way the president does," she told the committee. "He has to explain what he meant by judging. I can only explain what I think judges should do, which is judges can't rely on what's in their heart. They don't determine the law. Congress makes the laws. The job of a judge is to apply the law. And so it's not the heart that compels conclusions in cases, it's the law."

Sotomayor's repudiation of the president's empathy criterion raised eyebrows and not a few questions about her sincerity. But in truth her answer was a powerful tribute to the traditional American commitment to the rule of law. Even facing no serious threat to her confirmation, Sotomayor found it necessary to embrace an ideal of judging as old as the republic.

One prominent law professor, however, found Judge Sotomayor's response "disgusting." Michael Seidman asked, "How could someone who has been on the bench for seventeen years possibly believe that judging in hard cases involves no more than applying the law to the facts? First-year law students understand within a month that many areas of the law are open textured and indeterminate-that the legal material frequently (actually, I would say always) must be supplemented by contestable presuppositions, empirical assumptions, and moral judgments." Ronald Dworkin likewise took on the notion of being "faithful to the law," arguing that "the phrase means nothing, because there are so many contesting views about how to discover what the law is that 'fidelity to law' means fidelity to your own conception of law." Surely many more in the academy were thinking the same thing.

It is a shame that no one on the judiciary committee asked Sotomayor the question posed by Seidman and Dworkin: When the law is not clear, what does it mean to say that "the job of a judge is to apply the law"? Without elaboration, the statement is more platitude than commitment. What could it mean? And it would have been interesting to ask Judge Sotomayor why a judge should not decide hard cases based on her own moral judgment.

As it happens, a recent book by Columbia Law School professor Philip Hamburger is devoted to just this subject. In Law and Judicial Duty, Hamburger provides by far the most comprehensive historical account of the ideal of judicial duty that undergirded our framers' construction of the federal judiciary. Hamburger insists that judicial review, the power of courts to hold acts of the political branches unconstitutional, is not a distinct and discretionary power but simply an aspect of the more general judicial duty to decide cases in accordance with the law of the land. This explains why the power of judicial review is not mentioned in the text of the Constitution. A proper, historically grounded understanding of judicial duty, Hamburger argues, reveals "a judicial power both more authoritative and less dangerous than that which prevails today."

Hamburger traces the development of modern conceptions of law to the realization, in Europe and especially Britain, that human reason rarely provided clear answers to moral questions and therefore that an attempt to ground law in divine will, or a search for abstract reason and justice, would inevitably lead to discord. …

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