In the wake of the Bush administration, Americans are debating the meaning and importance of the rule of law. With Justice David Souter’s resignation, that discussion has intensified.
Most legal analysts give Souter high marks, and it is worth considering why. Souter was a brilliant and accomplished legal scholar, but there are many equally brilliant lawyers who would make terrible judges. Intellectual credentials are necessary, but they are not sufficient. Judges need an appropriate “judicial temperament.”
What does that mean?
Judges should demonstrate a commitment to what I call the American Idea—the vision of individual liberty that grew out of the Enlightenment and found its first institutional home in the U.S. Constitution and Bill of Rights. Many years ago, Judge Learned Hand defined the spirit of liberty as “the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias.” It would be hard to improve on that definition.
During his own confirmation hearings, Chief Justice Roberts likened judges to umpires. This was taken to mean that both simply serve to apply clear rules, with a minimum of “interpretation.” Several of my colleagues immediately pointed out that baseball umpires have wide and unquestionable discretion (one cited a handbook for umpires that instructed officials to “interpret the rules according to their spirit and purpose”), and dismissed the comparison as misleading. I disagreed. I think—I hope—what Roberts meant was that an umpire is not a player, not a member of either team. The umpire’s job is to call them like he sees them—recognizing that ultimately he can only “see” through his own eyes.
Much has been made of President Obama’s use of the term “empathy” to describe both David Souter’s service and the qualities he wants in his replacement. Words mean different things to different people, but to me, “empathy” implies the absence of rigid ideology, the ability to evaluate each case on its own merits, and an appreciation for the human consequences of decisions.
Cases that make it all the way to the Supreme Court are by definition those without clear-cut, obvious answers. Judges must apply the principles and values of our constitution to situations the Founders never contemplated. (What did James Madison think about porn on the internet? Are sobriety checkpoints Fourth-Amendment “searches”?)
Some years ago, I was a member of a panel of judges for Indiana’s We the People constitutional competition. One of the student teams gave a particularly insightful answer to a question posed by our panel. One of my fellow judges looked at those high school students for a long moment, and then said something I still remember. “You know, the constitution’s like a song. It’s important to know the words; but you guys also hear the music.”
David Souter heard the music. Let’s hope his successor does as well.