Today I listened to some of the broadcast of the
confirmation hearings of Supreme Court nominee Samuel Alito. The part I caught included questioning by
Sen. Joe Biden. Biden expressed great
admiration for retiring Justice Sandra Day O’Connor (whom Alilto is nominated
to replace). Biden kept saying that
Justice O’Connor understood “the real world” and cared about “the real
world.” Clearly, Biden was suggesting
that good judges pay attention to “the real world” – and that failure to pay
attention to the real world (say, by instead paying attention only to
abstractions) is a mark of a poor judge.
I agree with Biden that the real world is important. Law grows from experience. Good law cannot be deduced logically by a
genius or a committee of geniuses.
But I suspect that Biden’s concept of the real world differs
from my own. What is the real world?
The real-world examples used by Biden to flesh out his
conviction that a good Supreme Court justice is one who pays attention to the
real world were of employees who were fired or not promoted because of alleged
workplace discrimination. My guess is
that Biden regards any political or judicial theory that is skeptical of
granting relief for such real-world discrimination as a theory that ignores the
real world – a theory that callously elevates abstractions over reality.
If I were before Sen. Biden’s committee, I’d respond to Biden’s remarks like this:
Senator, I, too, believe that law is a product exclusively of
the real world and should not be divorced from it. I agree with Oliver Wendell Holmes’s
observation that law is no “brooding omnipresence.” But Senator, we must be careful about what
we take to be the real world. The real
world is not limited to the here and now; it’s not limited to the plaintiff and
defendant in whatever case happens to be in front of the court. It’s not limited to the people we can see and
hear standing before us or shouting behind us.
The real world exists through time and vast space. It includes millions of people whose names
and faces we don’t know and will never encounter – but each of whom is as real
as you and me. The fact that we – you
and me – don’t see these persons and don’t know them doesn’t make them unreal
or less-real than the people we do see and hear and touch and smell in our
courtrooms and in the lobbies of our legislative halls.
So let’s say we have a statute aimed at preventing
employment discrimination against disabled people. I ask: Which disabled people? And I answer: all disabled people. Surely being a man committed to the real world
you understand that this country contains many more disabled people beyond the
one who sues a company under the statute. If the court grants relief to the plaintiff – the disabled worker who
filed the suit demanding (say) that his employer build a special elevator just
for his use – that real-world disabled worker might well be helped. But what if the consequence of applying the
statute in this way makes it less likely that disabled people will be hired in
the future and by other companies?
I realize, Senator, that judges’ scope for making policy
decisions is far narrower than that enjoyed by legislators. And I agree that judges’ role is not to rewrite legislation. But please, Senator, don’t insult me or the
audience listening to this political spectacle by insinuating that only
persons, such as yourself, who focus only on the anecdote, only on a handful of
identifiable persons, have a monopoly on caring about the real world. Don’t suggest that those of us who care about
rules – who understand that rules are to be judged by their performance over
time and space rather than by how they work in any one instance – are less
concerned about the real-world than you are.
Indeed, Senator, because I understand that statutes and
legal rulings have effects far beyond those which are seen, I dare say that I
am more aware of the real-world than are those – such as you, Senator? – who
typically judge a rule to be good or bad based exclusively upon how it affects
a single or a few identifiable persons.
Senator Biden, the issue isn’t whether or not the real
world matters. We all agree that it
does. What separates you and me,
Senator, is that I don’t ignore that part of the real-world that is less
visible than that relatively small part that attracts the attention of
politicians and the press.