On Dworkin and Borkin'.

• Author: Lininger, Tom
• Position: Judicial nomination process

ELECTING JUSTICE: FIXING THE SUPREME COURT NOMINATION PROCESS. By Richard Davis. New York: Oxford University Press, 2005. Pp. 3, 211. $28.

JUSTICE IN ROBES. By Ronald Dworkin. Cambridge: Harvard University Press, 2006. Pp. 1,308. $35.

INTRODUCTION

In 2005, for the first time in 34 years, (1) the President of the United States faced the task of filling two Supreme Court vacancies in the same year. (2) A great national debate ensued. The debate focused not only on the qualifications of the President's nominees, but also on the nomination process itself. Acrimony seemed ineluctable. One nomination proved so controversial that the candidate withdrew her name. (3) The hearings on the President's nominations dominated national news for months. Eventually, by January 31, 2006, the nomination hearings closed and the Supreme Court once again had a full complement of justices. (4) Yet a number of vexing questions about the nomination process--and about the very duties of a Supreme Court justice--persist to this day.

Contemporaneously with the confirmation hearings in 2005-06, two authors published important works that helped to illuminate the national debate. The first of these books, Ronald Dworkin's (5) Justice in Robes, considers the proper role of morality in jurisprudence. Dworkin argues that judges' subjective, value-laden conceptions of justice are central to their adjudication, even when the judges aspire to absolute textual fidelity. Dworkin contends that judges must discern the morals and principles underlying the law and then apply these morals and principles as faithfully as the law itself. According to Dworkin, no judge can, or should, set aside such moralistic interpretation in favor of "strict constructionism."

A second author, Richard Davis, (6) analyzes the modern process for nominating and confirming Supreme Court justices. In his book Electing Justice: Fixing the Supreme Court Nomination Process, Davis traces the evolution of this process over the last several decades. Davis notes that the controversy surrounding the 1987 nomination of Judge Robert Bork ushered in a new era. Bork had shared his political views candidly during his confirmation hearings, and he endured such vituperation that his name became a verb in popular parlance. (7) The lesson of the Bork hearings is clear: any nominee who wants to win confirmation must hide his or her judicial philosophy and morality from public scrutiny. Davis contends that the present nomination and confirmation process places a premium on evasiveness, which is hardly an admirable quality in a Supreme Court justice.

The tension between Dworkin's book and Davis's book merits close attention. Dworkin insists that the moral philosophy of judges is, and should be, an important determinant of their jurisprudence. Yet, as Davis points out, the confirmation process for Supreme Court nominees does not permit meaningful discussion of normative matters. Thus the judicial philosophy that is so central in Dworkin's analysis is paradoxically inscrutable during the confirmation process that Davis analyzes.

This Essay will use Dworkin's and Davis's scholarship as a jumping-off point for a discussion of the Supreme Court nomination process. I argue that while Dworkin's and Davis's books, when read together, expose a significant problem with the current nomination process, a possible solution to this predicament may lie in a change to the judicial code of ethics and the procedural rules for confirmation of judges.

My analysis will proceed in four steps. Part I will address Dworkin's arguments. Part II will evaluate the analysis and evidence in Davis's book. Part III will consider an additional variable to which neither Dworkin nor Davis paid significant attention: the ethical rules for judges. Finally, Part IV will offer proposals for reforms that would permit forthright discussion of nominees' views during confirmation hearings, but would not unduly hinder the nomination process.

1. DWORKIN'S ARGUMENT

   Ronald Dworkin, one of the nation's foremost legal philosophers, (8) has solidified his legacy with his latest book. Justice in Robes presents a synthesis of Dworkin's jurisprudential theory. He explains the evolution of his thinking and the influences to which he has reacted. Most intriguingly, Justice in Robes includes several chapters challenging the leading proponents of competing jurisprudential theories. Accessible, provocative, and enlivened by frequent clash, Justice in Robes offers an ideal primer for students beginning their study of jurisprudence, and the book also rewards close scrutiny by scholars who are already familiar with Dworkin's philosophy.

   Dworkin asks a simple question at the outset of Justice in Robes: "How should a judge's moral convictions bear on his judgments about what the law is?" (Dworkin, p. 1). Dworkin posits that morality and law are ineluctably intertwined. The interpretation of law is to a great degree a normative enterprise because the law leaves interstices in which judges must rely on their intuitive understanding of justice (Dworkin, pp. 18-21, 187). Even for those judges who do not explicitly embrace a moralistic interpretation of law, the act of articulating a legal interpretation entails explaining and justifying past legal practice, and this process draws out what the interpreter considers valuable. According to Dworkin, strict constructionism--the notion that a judge could set aside his or her morality and simply follow the letter of the law--is a hopeless fallacy. (9)

   Dworkin does not lament the overlap of law and morality; he celebrates it. Jurisprudence benefits from a candid acknowledgement of law's moral underpinnings. After all, law itself is little more than a codification of values, (10) so it should not seem surprising that judges resort to their own conceptions of morality as a guide to the interpretation of law. Dworkin goes so far as to suggest that law is but a department of morality (Dworkin, p. 34).

   Nearing the end of his distinguished career, Dworkin has decided to respond in a comprehensive manner to the theorists with whom he disagrees. For example, he inveighs against the originalism espoused by Supreme Court Justice Antonin Scalia. According to Dworkin, Justice Scalia focuses too much on the text of individual constitutional provisions, and too little on "constitutional integrity"--a broader notion that incorporates consideration of the entire Constitution, the principles that pervade the Constitution, and the history of this nation (Dworkin, pp. 118-19).

   Dworkin resumes his criticism of H.L.A. Hart's doctrinal positivism. (11) According to Dworkin, positivists believe that

   a community's law consists only of what its lawmaking officials have declared to be the law, so that it is a mistake to suppose that some nonpositive force or agency--objective moral truth or God or the spirit of an age or the diffuse will of the people or the tramp of history through time, for example--can be a source of law unless lawmaking officials have declared it to be. (Dworkin, p. 187) Dworkin believes that proper legal interpretation is not so facile. Judges who must interpret the law draw on moral considerations in a way that positivism cannot explain (Dworkin, p. 187). A "judge or citizen who has to decide what the law is on some complicated issue must interpret past law to see what principles best justify it, and then decide what those principles require in the fresh case" (Dworkin, p. 141). The animating principles of law are a distraction for a positivist theorist, (12) but they are the central focus for Dworkin.

   Seventh Circuit Judge Richard Posner also draws Dworkin's ire. Labeled "Darwin's new bulldog" by Dworkin, Judge Posner has argued that moral theory cannot provide a "solid basis" for judgment (Dworkin, p. 81). Of course, Judge Posner favors the empirical approach more typical of the law-and-economics school. Dworkin chides Posner for underestimating the capacity of judges to apply morality to the task of judging. In one particularly biting passage, Dworkin suggests that "Posner's bad arguments may well be traps, for one of his central claims is that judges are not good at philosophical reasoning, and he may be tempting critics to help prove his claim by showing it is true of at least one...." (Dworkin, p. 74).

   Dworkin criticizes John Rawls's doctrine of public reason on the ground that it inhibits judges' reliance on their own subjective morality. Rawls has sought to define the kinds of arguments that are permissible for officials in a politically liberal community, including judges (Dworkin, p. 252). Rawls insists that judges may only accept those justifications that all reasonable members of a political community would support (Dworkin, p. 252). Judges must eschew "controversial religious, moral, or philosophical doctrines," according to Dworkin's interpretation of Rawlsian theory (Dworkin, p. 252). Dworkin cannot abide such a jurisprudential straitjacket. He argues that it would be both impossible and undesirable for judges to forsake their own moral opinions on the ground that these opinions could diverge from the prevailing "public reason" (Dworkin, p. 254).

   Dworkin's criticisms of these other theorists share a common denominator: he debunks what he believes to be the myth of neutral jurisprudence. Dworkin insists that no legal system can identify law without recourse to its merits. The title of his book, Justice in Robes, aptly summarizes his position: it is each judge's subjective understanding of right and wrong, rather than simply the intrinsic force of law itself, that determines justice in our legal system.

   He ends by offering a new "intellectual topography." Rather than charting law and morality as two different intellectual domains, Dworkin suggests that they are coextensive. We should not deny the interrelationship of law and morality, but seek to understand it better. So enlightened, "[w]e...