Carol Platt Liebau: What Judging Is

Sunday, October 28, 2007

What Judging Is

In today's LA Times, David Savage takes the requisite left-wing potshots at Justice Clarence Thomas, writing about "My Grandfather's Son."

[R]arely have the hardships of the young Thomas been evident in the opinions of Justice Thomas. In his 16 years on the high court, Thomas has established a stern judicial philosophy that leaves little room for siding with underdogs in disputes with governments or corporations . . ..

"Justice Thomas' opinions do not reflect any special sympathy for poor people," said David Vladeck, a professor at Georgetown University Law Center. His is "not the track of record of a justice championing the interests of the poor or disenfranchised."

Set aside the mischaracterization of the Justice's originalism as a "stern judicial philosophy" (actually following the dictates of the Constitution may yield harsh results in some cases, but the philosophy itself is no more inherently "stern" than one relying merely on the whims of a particular justice).

What's remarkable about the smear is its underlying advocacy for a jurisprudence under which justices "reflect special sympathy" for groups to whom they happen to belong (or to have once belonged). In this view, it's perfectly okay for women judges to judge differently from men, African Americans from Latinos, Jewish people from Catholics, rich people from poor. And justices choosing to "champion" various parties or causes is no problem, either.

The only difficulty, of course, is in such a world, the whole concept of "equal justice under law" becomes meaningless -- or, rather, has a million different meanings depending on the unqiue demographics of any particular judge. Nonetheless, this seems to be the model of judging embraced by the left. One has to wonder whether such an idiosyncratic approach would be applauded if a rich, white, conservative male decided that he would embrace the left wing approach, and allow his rulings to "reflect special sympathy" for the milieu in which he was raised . . .

Obviously not. For any American who values the traditional understanding of judicial impartiality, Justice Thomas is praiseworthy for his efforts to apply the law without "special sympathy" for parties on the basis either of their similarity to his own demographics, past or present, or on his own preconceived notions of which causes he should be "championing."


Blogger stackja1945 said...

Carol, the Left has never explained their support for Stalin's justice during the 1930's. How can they seek to speak for the law now? But the Left has always worked to different standards. The left is right and the right is wrong.

4:33 PM  
Blogger Dr.D said...

I believe the term for this is "identity politics." The Left thinks that even justice should be political, and that identity politics should be a driving force in the dispensation of justice. How much more warped can the concept of justice get than that?

7:40 PM  
Blogger Greg said...

When it comes to the judiciary, I'm all for no special sympathies.

10:19 AM  

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