The debate gearing up around the nomination of Judge Sonia Sotomayor has little to do with her qualifications (undeniably impressive) and everything to do with a partisan referendum on the role of judges in a free society. You can practically already hear the senators' speeches, rewound from the last hearings. Conservatives will say she is "activist" and "result oriented," while liberals will praise her "empathy" and commitment to the "rights" of the downtrodden.
The tired vocabulary from the 1960s, however, is not just boring--it also reveals a profound misunderstanding about the role of judges. Both sides basically have it backwards, and have conspired unwittingly to foster a kind of legal free-for-all. Judges sit on their hands, letting litigants argue almost anything (thereby avoiding "activism") while permitting any disgruntled person to challenge decisions by people in authority (thereby showing "empathy" and honoring "individual rights").
Conservatives practically snarl when using the phrase "activist judge," thinking of judges in the heyday of the rights revolution who took it upon themselves to take over prisons and school districts. But their concern for judges acting like legislatures (a fair point) has mutated into a philosophical antipathy to judges making any value judgments. Conservative dogma, to quote Chief Justice Roberts in his confirmation hearing, is that judges are "like umpires," who don't "make" law but just "apply" law. This is a myth, of course--no animal sacrifices or burning of incense will reveal the one true legal ruling. A judge must make a value judgment. There's no other way to distinguish between, say, a valid lawsuit and one that, in a free society, ought to be dismissed.
Words matter, however, and the epithet of "activism" is now lodged in the collective judicial brain--it is hard to talk with any judge about judicial responsibility without hearing immediate protestations about how judges must avoid being "activist." But if judges don't assert values of reasonableness, then society loses the protection of the rule of law. That's what happened in modern society, with the effects all around us. Hardly any interaction in a free society is safe of legal peril--in the workplace, in the classroom, in government, on the playground. Teachers won't put an arm around a crying child. Doctors squander billions on defensive medicine. Diving boards disappear.
Liberals, on the other hand, see justice as the protection for the little guy, and look to Judge Sotomayor "to stand up for the rights" of the underprivileged. The rhetoric of rights is overpowering. Judges practically wilt at the thought of being insensitive to "individual rights."
But what about the rights of the community? Looking at every lawsuit as a matter of individual rights implies a lowest common denominator approach to justice that is the antithesis of the rule of law. Every accident, every job setback, has an injured person, for whom we can all feel empathetic. But letting the person maintain a claim creates a different set of victims (those who pay) and, more importantly, can discourage socially beneficial activities. If any swimming accident can result in a lawsuit, pretty soon lakes will close and there will be no diving boards.
Just as concerns about "activism" sprung from judicial overreaching, the liberal preoccupation with rights arose from a long history of judicial neglect. But the idea of rights then expanded to encompass what legal historian Lawrence Friedman calls "total justice"--in which courts were available to remedy almost any daily disappointment.
Pressing law onto daily choices is not freedom, however, but a form of coercion. Freedom is supposed to be an open field of human possibilities, not a legal minefield. Law supports freedom not by interceding in daily choices, but by defining the outer boundaries of legal intervention--"frontiers, not artificially drawn," quoting philosopher Isaiah Berlin, "within which men should be inviolable."
America needs a new judicial philosophy. Instead of focusing on enforcing "rights" and avoiding "activism," judges should look to the effects of lawsuits on the functioning of society, and see their job as drawing "boundaries" and achieving a "balance" between competing interests of freedom and individual grievances. Judicial rulings that keep claims and defenses reasonable should be encouraged, not avoided. To quote former Justice Benjamin Cardozo, the judge must act "as the interpreter for the community of its sense of law and order." Only by judges continually asserting reasonable community values can citizens enjoy the protection of the rule of law. As Justice Felix Frankfurter observed, "A timid judge, like a biased judge, is intrinsically a lawless judge."
There is plenty for liberals and conservatives to argue about, but first we need to restore the authority of judges to bring order to the free-for-all. What people can sue for establishes the limits of everyone else's freedom. That's why judges must be activist in taking back control of the courtroom. That's why judges must look to the effects of claims on the broader society, not just empathy to the particular claimant.