Imagine this as the fault line in judge Sotomayor's confirmation hearing: the Republicans worry that she will not always use letters of the alphabet when writing up her decisions; the Democrats counter that she always will.
This is plain stupid, you'll say.
This simply cannot be.
Whether her decision is right or wrong, smart or stupid, at least of this we can be certain: it will sure be written out using letters of the alphabet.
If senators worried about that, the hearing would have been a waste of time, and a clear indication that they know nothing about the judicial process.
With which I wholeheartedly agree.
But let me slightly modify the scenario, leaving its substance in place, while changing the form.
How about this: "the Republicans worry that she will not always decide according to the law; the Democrats counter that she always will?" Well, what difference a few words make! Suddenly, the whole scenario looks plausible - and in fact, it rather sounds like the gist of the actual Sotomayor confirmation hearing.
And yet the two scenarios, one so utterly meaningless and stupid, the other seemingly getting at the very essence of the judicial vetting process, are, in the one and only respect that actually matters, exactly identical.
Here is why.
The only reason a judge makes a decision, is to resolve a dispute.
This is a given - without disputes there is no litigation, judges stay uninvolved, and no judicial decisions are handed down.
And when there is a need for judge's arbitration, how do the sides (or rather, their lawyers) present their position to him/her? By filing papers that show how the law supports their argument.
They would, most likely, refer to very different laws - because the body of the law is so vast, there is always something in it that can be found to support the exactly opposite claims.
And so, no matter which side is declared a winner, the judge has sided with the law - that is, either the law adduced by one side, or that from the other.
Not to decide "according to the law" is as impossible for a judge as to write the legal opinion with something other than letters of the alphabet.
Net result: arguing the need for the judges to "follow the law instead of making it" is moot.
Judges can rightly claim that even when they appear to be making laws in their legal decisions, they are merely following laws.
Judges cannot help but follow the laws - yet we all know all too well that not all is well in the world of judging.
The property case of Kelo v.
New London, or the more recent Ricci v DeStefano discrimination case provide ample proof that mere "legality" of a judge's decision is irrelevant when it lacks in soundness.
"Legality" being moot, it cannot possibly be a criterion for good and proper legal reasoning which we want in our judges.
If focusing on "following the law" gets us exactly nowhere in judging a judge, what than is the criteria of good judging? Well, let's again get to the basics.
A judge deals with two sets of arguments - one from the plaintiff, another from the defendant.
Both arguments have facts and law at their foundation, and the logic to connect those facts and law to the desired outcome.
The judge's job, than, is this: first, establish the facts by comparing the two narratives; than, establish which of the laws presented by the litigants are of relevance to the facts; and award victory to a side whose argument proved stronger.
Notice, first of all, that there is nothing specifically "lawyery" in a good judge's work.
All one needs to do the job well is common sense and logic.
If any class of people is to make good judges, it would be professionally trained logicians, rather than ex-lawyers.
And secondly, observe where the good judge's loyalty is - it is to the litigants and their argument, not to the legal implications of the decision for the future cases.
Future of the law should be of no concern whatsoever to a judge (which is probably what the Republican senators were instinctively trying to say, without quite saying it).
From that prospective, a "mere" professional logician is also preferable to a crafty law-man with an eye on politics, willing to accept a poor argument for the sake of the "proper" future of the law.
The fundamental difference between two approaches is obvious: in one case, the sides' argument drives the judge's decision; in the other, the pre-conceived decision forces particular evaluation of the sides' argument.
It is a proverbial difference between a dog wagging the tail, and the tail wagging the dog.
We all know that the dog is ought to be wagging the tail, not the other way around, but this is not what we always get from the judges.
Some judges tend to think ahead, and to think big.
"How will my decision impact future cases?" is too often a question that judges ask themselves, instead of a down-to-earth "whose argument is stronger, plaintiff's or defendant's?" When that happens, we wind up with legal lemons like Kelo or Ricci.
And then, there is a capacity question.
Firefighters in Ricci got lucky, along with some two hundred others, when the Supreme Court agreed to take their case.
The other ten thousand litigants who petitioned the Supreme Court for rehearing their cases that same year, and who may have also been subjected to an injustice, had their petitions rejected - for the sheer lack of Supreme Court's capacity.
Perhaps a question should be asked, how can one Supreme Court, envisioned and implemented when the country's population stood at five million, serve a nation that is sixty times bigger? Shouldn't we have sixty Supreme Courts to help the cause of justice? Well, but what should the senators who sit jury on the selection of a Supreme Court's nominee do? They should, first of all, not waste their time questioning whether nominee will "follow the law" when coming up with a decision, but check for the signs of allegiance to the "future law.
" Any sign of taking into account the decision's legal implications for the future, if detected, should automatically disqualify the candidate.
As should sloppy logic.
As should the allegiance to "the law," rather than to the litigants.
It has been observed that all that judge Sotomayor needed to do to get to the Supreme Court was to speak much and to say nothing.
She is a smart woman and did that all right.
Which is all too easy to do when senatorial jury does not ask the right questions.