Rhetoric & Reality in Judging

There is a very interesting review by Stanley Fish that, although not strictly a small firm issue, is an issue particularly in style at the moment with the upcoming Senate confirmation hearing on Elena Kagan's nomination to the Supreme Court:  are judges just umpires who interpret the law or are judges in the business of making law?

His argument is that although historians, legal theorists, political scientists and sometimes judges themselves have over time constructed a “standard chronicle” in which these two views of judging vie for supremacy, no one has ever been a genuine adherent of either: “No one thinks that law is autonomous and judging is mechanical deduction, and rare is the jurist who thinks that judges are engaged in the single minded pursuit of their personal preferences.

I'm not trying to make any political point here.  More the practical side of being in a courtroom.  My favorite judges were the smart ones, be they liberal or conservative in bent, who understood the substantive and procedural law and applied it.  I say that from the view point of someone who represented plaintiffs in personal injury cases for most of my practicing career.  Certainty is a great motivator in avoiding and settling disputes.  But that said, as any of us who have stepped into a courtroom know, one the written law, whether it be the Napoleonic Code or a local zoning ordinance, can never capture the length and breadth of every real-life situation.  All too often, the written law just does not answer the real life question.  That's why we have judges.  They make those decisions and I don't see how anyone gets around saying that isn't making law.

I used to use the "Tank in the Park" hypothetical to illustrate this.  The city zoning ordinance says, "No vehicles in the park."  The local veterans, with general support, want to put an old tank in the park as a veterans memorial.  Is the tank a vehicle or no?  Language is inherently more imprecise than actual life.  That's why we need judges.  They have to make those decisions and in making those decisions, they aren't just being umpires calling balls and strikes because the law doesn't delineate what is a ball or a strike in the situation.  That is why it seems to me that Tamanaha's thesis might well be met with a "Yeah, so tell me something I don't know" from lawyers who spend most of their days in court.

Now this doesn't even start to get into the whole psychological side of judging - recognizing the fact that as fair as we might want to be, we can not help being influenced by our upbringing, background, and, god-forbid, liberal or conservative or libertarian, politics.

For the full article:  Styles of Judging: The Rhetoric and the Reality by Stanley Fish.

- Peter H. Berge

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