Thursday, June 10, 2010

Justice Souter on judging

Judging is a really hard and truly human exercise. Judges definitely are not umpires, according to Justice Souter. Here are his remarks at the Harvard commencement. Here are his closing remarks:

So, it is tempting to dismiss the critical rhetoric of lawmaking and activism as simply a rejection of too many of the hopes we profess to share as the American people. But there is one thing more. I have to believe that something deeper is involved, and that behind most dreams of a simpler Constitution there lies a basic human hunger for the certainty and control that the fair reading model seems to promise. And who has not felt that same hunger? Is there any one of us who has not lived through moments, or years, of longing for a world without ambiguity, and for the stability of something unchangeable in human institutions? I don’t forget my own longings for certainty, which heartily resisted the pronouncement of Justice Holmes, that certainty generally is illusion and repose is not our destiny.
But I have come to understand that he was right, and by the same token I understand that I differ from the critics I’ve described not merely in seeing the patent wisdom of the Brown decision, or in espousing the rule excluding unlawfully seized evidence, or in understanding the scope of habeas corpus. Where I suspect we differ most fundamentally is in my belief that in an indeterminate world I cannot control, it is still possible to live fully in the trust that a way will be found leading through the uncertain future. And to me, the future of the Constitution as the Framers wrote it can be staked only upon that same trust. If we cannot share every intellectual assumption that formed the minds of those who framed the charter, we can still address the constitutional uncertainties the way they must have envisioned, by relying on reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people.
That is how a judge lives in a state of trust, and I know of no other way to make good on the aspirations that tell us who we are, and who we mean to be, as the people of the United States.

Dahlia Lithwick has an interesting take on the speech here:

It's surely too much to ask that the modern confirmation process explore the complex work of balancing, in Justice Souter's recent words, a reliance on "reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people." The very notion that we could trust anyone to do all that is too frightening to contemplate. But could we at least ask that the nominee, and the senators, decline to insult our collective intelligence with the suggestion that judging is so easy, and the Constitution so crystal clear, that a second-year associate could do it.
It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be. It terrifies me even more to think that we've crafted a confirmation process in which the consistent message is that judging is so simple that any old bozo can do it. If we continue to believe that this is so, we will be on the road to confirming any old bozo that stumbles along.

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