Souter's admonition that we should stop looking for infallible mommies and daddies on the bench differs only slightly from Sandra Day O'Connor's post-retirement crusade against judicial elections. Like Souter, O'Connor has used her time since departing the bench to urge upon the American people, as she argued recently, that judging is complex and that "the judiciary, unlike the legislative and the executive branches, is supposed to answer only to the law and the Constitution." O'Connor well understands that the American public seeks greater control over the judicial branch. But like Souter, she is trying to explain that there are costs to presenting the art of deciding cases as something that can be painted by the numbers. You have to wonder why it's only after they leave the court that justices are permitted to say that judging isn't simple. Is it some form of humility that requires sitting judges to downplay their intelligence or skills?
Contrast Souter's honesty to the nonsense you hear at judicial confirmation hearings, up to and including the chief justice's claim at his hearing that "umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules." Last June, at her own hearings, Sonia Sotomayor described her vision of a good judge as someone "who looks at the facts of each case, listens and understands the arguments of the parties, and applies the law to the facts at hand." Easy, right? I mean, my 5-year-old can do that.
So, as we look forward toward Elena Kagan's confirmation hearings, the question isn't whether she will use the opportunity of her hearings to defend living constitutionalism or to debunk originalism. That is probably too freighted a discussion, and one that no progressive can possibly win in this day and age. The question I would ask is why it's so fashionable for nominees to suggest that the hard work of judging is simple; that the Constitution is no more complicated than the instructions for assembling an Ikea end table; and that the reason they are perfectly qualified for the job is that, well, they can read. What does it say about the court as an institution that everyone who goes through the interview process must downplay the difficulty of the job?
It's surely too much to ask that the modern confirmation process explore the complex work of balancing, in Justice Souter's recent words, a reliance on "reason, by respecting all the words the Framers wrote, by facing facts, and by seeking to understand their meaning for living people." The very notion that we could trust anyone to do all that is too frightening to contemplate. But could we at least ask that the nominee, and the senators, decline to insult our collective intelligence with the suggestion that judging is so easy, and the Constitution so crystal clear, that a second-year associate could do it.
It saddens me to think that it took Justice Souter 19 years of heavy constitutional lifting and departure from the court before he could turn to the American people and explain clearly that much as we might want judging to be easy, it never can be. It terrifies me even more to think that we've crafted a confirmation process in which the consistent message is that judging is so simple that any old bozo can do it. If we continue to believe that this is so, we will be on the road to confirming any old bozo that stumbles along.