The Problem With Skepticism: It's Hard to Believe

Brian Tamanaha

In his testimony Judge Roberts insisted that his personal views will be irrelevant to his legal decisions:

"My faith and my religious beliefs do not play a role in judging. When it comes to judging, I look to the law books and always have. I don't look to the Bible or any other religious source."

"I will not take to the Court whatever personal views I have on the [right to die] issues, and I appreciate the sensitivity involved. They won't be based on my personal views. They'll be based on my understanding of the law."

Now that we are all Realists, statements like this can sound a bit jarring. Opponents on the Left have been openly skeptical of these claims.

Why would comments like this elicit a snicker? Here are two obvious alternatives: skeptics think he is lying--saying this now to get the CJ seat, but planning to advance his personal views once he gets on the SC; or skeptics think his claim is impossible--personal views inevitably color legal decisions. The former would make Judge Roberts dishonest, the latter deluded. Put in such direct terms (not pulling any punches), these would seem to be harsh alternatives. Little in his backgound suggests that he is devious or naive.

Skeptics might have seen his statements as more plausible if he had added: "Of course at some fundamental level our personal views may subconsciously color how we interpret law, especially when the clause being interpreted is open-ended..." This is the standard view of judging within the legal academy, at least with respect to the Supreme Court.

But consider what the response would have been if Judge Roberts had said "My religious and personal views will form the basis for my legal decisions." Many people, including those within the legal academy, would say that disqualifies him from the position.

This seems to place Judge Roberts in a Catch 22: he is scoffed at if he denies that his personal views will determine his legal decisions, but he is disqualified if he says that they will determine his legal decisions.

A way out of this box is to recognize that Judge Roberts was describing the ideal that judges should live up, and asserting that he would strive to meet this ideal to the extent humanly achievable. Neither Realism nor postmodernism would deny that there is a real difference between instructing judges to decide based upon on what the law requires, versus instructing judges to decide based upon their personal views. Judge Roberts recognizes this difference and firmly promised that he would do the former.

I find Judge Roberts' conservative personal views worrisome. I want his decisions to be based on the law rather than on his personal views. Rather than dismiss his claims to this effect, perhaps people on the Left should applaud him for making this promise, and encourage him to live up to it. He certainly is preferable to the most likely alternative (perhaps up next): a Justice who has fewer qualms about letting her conservative personal views determine her legal decisions.

Never mind the skeptics--I believe you Justice-to-be Roberts (please don't let me down!).
Posted 6:30 PM by Brian Tamanaha [link]