(Sotomayor’s critics) are running together two different ideas of impartiality. One principle is that judges should be impartial in interpreting the law — they should apply the law no matter what its content happens to be, regardless of who comes before them. The second idea is that the content of the law should have a certain character — it should allow for no distinctions whatsoever based on group membership or personal characteristics. But suppose the law allows for such distinctions, for example, as current law does for certain affirmative action programs. Then the first principle of impartial application of the law whatever it may be conflicts with the second principle of neutrality with respect to groups, or, in this case, colorblindness. This problem happens all the time.
So by the second definition, impartiality requires activist judging. A lot of it. But Balkin’s point also hints at why the first definition — the type of impartiality Balkin says “we normally expect” judges to demonstrate — seems odd to me as well. It portrays judges as orienteers, making their way through the American wilderness guided only by a compass pointing straight north to Constitutional ideals. But any judge outside the Supreme Court — and to a certain extent, thanks to the pressures of stare decisis, Supreme Court justices as well — are bound not just by fidelity to the Constitution (much less the principles presumed to be behind it), but to a body of statutory law and precedent. (If they weren’t, Supreme Court decisions wouldn’t matter at all.)
And the fingerprints of circumstance, of partiality, are all over this body of law. Precedent is the product of case law, the application of principle and statute to a particular set of circumstances, and honoring it often requires determining which “framework case” is most similar to the one at hand. No one who has spent any time in Washington believes that federal laws are any sort of pure expression of Constitutional principles. Even the Constitution itself exists in its current state only because of a series of compromises and negotiations. (No one who has read Catherine Drinker Bowen’s excellent book Miracle at Philadelphia could possibly mistake the Constitution for a set of tablets handed to George Washington on Mount Sinai.)
But even as we admit that the way that laws get made looks like, well, the manufacture of sausage, we expect that judges should stay unwaveringly loyal to these laws. (Any accusation of “legislating from the bench” implies that judges must remain bound by law, not principle, until instructed to do otherwise by a legislature.) We allow the people making law to represent their constituents — in fact, we generally encourage them to resemble their constituents and celebrate their own biographies — but we deny the same sort of personality to the judges who are instructed to interpret the products of politicians’ labor. Those who make law and those who apply it appear as completely different kinds of people, creating an odd divide that often makes it difficult to see the connection between the law of policy and the law of the judicial system at all. Furthermore, the double standard encourages politicians to develop larger-than-life personalities, while discouraging judges from demonstrating personality at all (see also: “pushy,” “sharp-tongued”). As Adam Serwer of the American Prospect put it on Twitter: “If there’s no place for empathy in the courtroom, why don’t we just get Google to design our new robo-judges?”
The other problem is the way the public views law itself. The notion of the “rule of law” requires some odd alchemy. At some point in the process, ugly, compromise-filled, politically contingent legislation becomes stone-encoded, immutable Law. Alternatively, a detail-filled, context-dependent case becomes a guiding light of Precedent. It makes perfect sense that the bodies responsible for performing both of these transmutations should acquire outsized significance in the public eye. The alchemists of Precedent — Supreme Court justices — are nine beneficiaries of this; the Senate is gearing up for a massive confirmation battle over a judge whose two prior federal appointments it approved without incident, and no one seems to think this is strange at all. But in order for the transformation of legislation into Law to be meaningful, extraordinary symbolic power must be given to the act of signing it into law — done, of course, by the President.
The imperial Presidency and the rule of law are often seen as antagonists, and in many cases that’s true. But the very notion that the law is greater than any human being, including those who made it and those who interpret it, requires enhancing the stature of the man at the top.