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November 16, 2005

The Rule Of Principle, Not Personality

Any widespread belief and practice of 'the rule of law' can be understood as a strong commitment to principle over personality. Consider, for example, a game such as Scrabble. The rule of law applied to Scrabble means that the players mutually accept a set of rules -- a set of laws -- for playing the game; and, that, while playing any particular game, the players abide by them.

There are occasions, as any regular Scrabble players knows, when words are spelled out that are not covered by existing rules; that is, particular plays that demand review under a set of agreed upon rules that leave the acceptability of the word unclear. Many Scrabble players agree on a rule that words must exist in dictionaries. Only by playing the game do they, in the heat of competition, come to agree on 'what particular dictionary or dictionaries". Then, at some point having specified dictionaries, they find themselves debating the acceptability of words such as 'app' in common usage that have yet to find themselves in those dicitonaries -- and so on.

The rule of law in Scrabble evolves during games and between games. Perhaps 'app' is not accepted during a particular game; but agreement is reached to find and accept a dictionary with more updated contents.

One phenomenon than any Scrabble player understands, however, is this: It is simply neither possible nor credible to claim 100% objectivity. Players are involved in these difficult moments and choices. What the players aspire to is the use of agreed upon principles to outweigh their individual subjectivity. But, subjectivity -- the potential for a rule of people not principle -- is always present. For example, one player may be more 'up' on current words than another. When the 'between game' rule making chooses whether to include newer, more conteporary dictionary, that is a reality that is undeniable. Each of the players -- each of the rule makers -- involved cannot credibly deny that their relative skills, knowledge, persoanal preferences and so forth are involved.

What they can credibly suggest is that, with all humility, they seek to continue playing Scrabble together with orderly expectations about the rules and an overall commitment to rules.

Humility in a regime of law, then, demands that we acknowledge the reality that our personal points of view are part of the reality within which we set and abide by rules. What we demand of those who very actively participate in rule making is that they both acknowledge this reality with humility and that, as part of their contributions to the rule of law, that they tell us when their personal beliefs are most at risk of influencing the game.

We ask them to be human beings, not machines -- and to be honest about that.

Thus, if a client seeks an advocate -- say, a corporation charged with sex discrimiination seeks a talented, accomplished female attorney to represent the corporation -- the client expects the attorney to avoid letting personal beliefs from getting in the way. But the client does not expect -- nor will the attorney find it possible -- to deny or ignore the existence of those beliefs. This is why some attorneys -- both men and women -- don't accept certain assignments and why others do.

Of course, the opposite is also evident; namely, that some lawyers actively seek assignments because those assignments are strongly in line with their personal views. Many lawyers, for example, actively volunteer for death penality cases because they so strongly oppose the death penality.

This, it would seem, is what must have motivated Sam Alito when he sought the Reagan Justice Department job in 1985. He strongly opposed a woman's right to choose and he wanted to work in a Justice Department that might do something to curtail or reverse that right. He evidently felt just as strongly about working for a Justice Department that might seek to disenfranchise voters by reversing the Constitutional right of 'one person, one vote'.

In other words, Sam Alito pursued the opportunity to change the world in a way he actively supported -- to make the United States a nation that reflected his strong personal beliefs -- to change the rules.

Suggesting that he would 'say anything just to get a job', it seems to me, fails to give Sam Alito credit for (1) his deep personal opposition to one person, one vote and a woman's right to choose; and, (2) his deep desire to use the skills and tools he had acquired to actively participate in a Repubican administration he believed would seek to change those principles.

Alito, though, went on to differentiate for Feinstein his sense of an advocate's job versus a judge's job. "I'm now a judge... I'm not an advocate. I don't give heed to my personal views, what I do is interpret the law."

Well, let's first note that he fails the test of humility. It would be refreshing for a nominee to the Supreme Court to acknowledge that they have personal views and to explain what those views are. In doing so, the nominee can -- and indeed should -- explain what and how he works hard to limit the effect or influence of those personal views in matters at hand. But to suggest that judges somehow are not human beings - that they do not have subjectivity -- is neither credible nor, frankly, human.

Second, though, let's also acknowledge that Alito understands through his experience as a judge that he is expected to put his personal beliefs to one side. I simply cannot accept any other proposition.

But, third, let's go on to ask about the risks of personal points of view influencing the interpretation of law. Those are even larger in the world of courtrooms than they are in Scrabble. And, the stronger a personal point of view, the more likely that point of view will find it's way into law.

So, based on his comments to Feinstein, we know this:

Alito deeply opposes a woman's right to choose as well as one person, one vote.
Alito lacks the humility to acknowledge that he is a human being with deep personal views that are necessarily part of the reality of doing his job.
Alito understands that a judge is supposed to avoid having the rule of personality/subjectivity interfere with the rule of principle/law

And, finally, Alito is seeking a job for which he has been nominated by a Republican administration that itself deeply lacks humility and is just as deeply opposed to a woman's right to choose and works hard to discourage voters from exercising their franchise.

Values are best understood by looking at that combination of belief and behavior that is most predictable. Before jumping to 'good' versus 'bad', let's look hard at 'what is and why'. Alito's beliefs and behaviors are laid out across a life in which he has worked hard to reverse a woman's right to choose as well as one person, one vote. This is who he is; this is what he stands for.

And, in our rule of law, there is no current rule that makes anything he's done illegal. He's a person seeking to change the world and taking action in whatever sphere is available to him to do so. That is his right according to how we play 'Scrabble' in our nation today.

Another part of how we play 'Scrabble' is this: the Senate must decide whether or not to put Alito on the Supreme Court. As they make their decision, let's hope they will look at the nominee's deep personal beliefs and choose whether those beliefs best serve the rule of law in the United States. Put differently, the Senate must choose whether to put Sam Alito the human being -- not some fictitious Sam Alito as computer -- on the Supreme Court.

Posted by Doug Smith on November 16, 2005 01:14 PM | Permalink