Judgeophrenia or Schizojudiciary?
July 14, 2005 § 7 Comments
In arguing against the natural law trumping positive law, as part of the ongoing right-liberal blogosphere apologia for presumptive pro-choice supreme court nominee Alberto Gonzales, Rob Vischer at Mirror of Justice says the following:
I’m fairly confident that Gonzales was not speaking of mere “technical points of law” (whatever those are), but of a judge’s responsibility to uphold settled legal principles, regardless of how distasteful he finds them.
It seems to me that there is an equivocation going on here. The presumption is that a judge is perfectly capable of making a dispassionate, objective judgement when it comes to positive law (“uphold[ing] settled legal principles”) but that this same judge in this same moment is incapable of objectively making a judgement about natural law, since the natural law is reduced to something the judge finds “distasteful”.
So in the modern legal order we are presumed to have schizophrenic judges who on the one hand are perfectly capable of making a dispassionate, objective judgement; but on the other hand and in the same moment are incapable of making a dispassionate, objective judgement.