What is the purpose of the Supreme Court? Conservatives and progressives have very different answers to that question, write John Yoo and James C. Phillips:
Before they devolved into an ugly political and personal brawl, Kavanaugh’s confirmation hearings revealed, among other things, the fault lines in American constitutional politics.
Democratic senators, as well as their expert witnesses called in opposition, advanced a view of a judge as simply the enabler of a political party’s policy preferences. They cross-examined Judge Kavanaugh on the specific outcomes he had reached in cases relating to certain groups of interest: minorities, women, environmental organizations, and the like. In their view, the only difference between a judge and a congressman is the former wears a robe.
Influenced by the Legal Realism movement, which is the basic approach taught in most American law schools today, these Democrats find law and facts to be mostly smoke and mirrors. Instead, to them, judges really exercise raw and unchecked political power in determining winners and losers. Judging is about outcomes, not process. To be a good judge is to pick the right winners. Lady Justice is not blind — she metes out justice with both eyes wide open so that she can favor the preferred class or group.
If judges simply advance political goals, then Democrats were at least honest in their desire for a judge who sympathizes with their favorite groups. That’s why President Obama said he was looking for judges with “empathy,” though undoubtedly it was not empathy for corporations, for example, but for groups he favored. Under this view, if you are a Democrat, you should only pick judges who vote for unions, racial minorities, and criminal suspects. If you are a Republican, you want judges who always vote for corporations and the police.
Republican senators, however, rejected this approach. Their view requires judges to be indifferent to the demographics of the parties before them. In Chief Justice John Roberts’s metaphor, judges are umpires who call balls and strikes, but do not promote personal preferences or prejudices. In other words, as Justice Kagan put it in her confirmation hearings, “the question is not, ‘Do you like this party or do you like that party? Do you favor this cause or do you favor that cause?’ . . . The question is what the law requires.”
[John Yoo and James C. Phillips, “A Clash of Judicial Visions,” National Review, October 19]
