Judging judges

Brad DeLong points out that...

Ruth Marcus is upset by Roberts's and Alito's disingenuous claims that they just apply the settled law to the case, ma'am:

Underneath Their Robes : [T]he judge's job, as Roberts and Alito surely know, is far more complicated.... That is... what makes who is nominated to the high court matter. And it is what I find so frustrating about the vapidity of their answers.... For even the most responsible, well-intentioned judge, respectful of precedent... is called on to make, well, judgment calls, filling gaps in legislation or interpreting capacious constitutional phrases. The higher up the judicial ladder, the harder the cases -- and the more important the judge's underlying worldview, judicial philosophy and constitutional vision. There is, in short, a soul inside every judicial machine.

Justice Benjamin Cardozo... described the inescapable, hidden forces tugging at judges -- "inherited instincts, traditional beliefs, acquired opinions" -- forces, that, he said, produced "an outlook on life, a conception of social needs... which, when reasons are nicely balanced, must determine where choice shall fall." Cardozo dismissed judges who see themselves as mere painters hired to touch up a room. "Their notion of their duty is to match the colors of the case at hand against the colors of the many sample cases spread out upon their desk. The sample nearest in shade supplies the applicable rule. But of course," Cardozo continued, "no system of living law can be evolved by such a process, and no judge of a high court, worthy of his office, views the function of his place so narrowly.... It is when the colors do not match... when there is no decisive precedent, that the serious business of the judge begins."...

On a more elevated but even more important plane, different judges bring to the bench different attitudes about presidential power, federalism and constitutional interpretation. What has been so disappointing about the nominees' testimony is their unwillingness to engage in this discussion in an honest, meaningful way. What has been so maddening about the questioning is the senators' inability to penetrate their platitudes or robotic restatements of the law...

It is possible to penetrate the platitudes and robotic restatements. But we can start down that road only if the Washington Post and other opinion leaders have the guts to recommend the rejection of any nominee who is unwilling to engage in honest, meaningful discussion about presidential power, federalism, and constitutional interpretation.