Kinsley on judicial lying

Kinsley points out a serious issue - or a serious bit of nonsense - in judicial nomination hearings.

As a loyal member -- well, as a member -- of the District of Columbia Bar, I am aware of the tension between advocacy and honesty. But until the recent controversies over Supreme Court nominees, I was unaware of the scope and depth of my professional obligation to avoid telling the truth. It apparently spans an entire career in the law....

When do lawyers become free to have their own agenda and say what they really think? Not when they leave the government and enter private practice. Roberts told the Senate Judiciary Committee that "the positions a lawyer presents on behalf of a client should not be ascribed to that lawyer." While true, this is a point that does not bear excessive emphasis. If the average potential juror knew that lawyers actually take pride in not believing what they say it could wreck the whole system.

But I take exception to his implication here and in other recent essays that "ethics requires evasion" entails a kind of subjectivity about belief that requires "evasion" since hearings have been oriented towards some kind of mythical objective neutrality among nominees regarding belief. This in itself is a belief in need of justification.

We all know that in the confirmation process, etiquette, if not ethics, requires evasion, if not outright lying, because to reveal any actual legal view would amount to "prejudging" potential cases.

Justices ideally use their best judgments about law on the books, precedent in judicial rulings, interpretation of precedent, and the supposed funded wisdom of his/her experience with jurisprudence. All of this requires belief, and perhaps most importantly various ethical beliefs. Kinsley appears to agree here. But we're not talking about ethics as belief in lists of moral rules such as the Ten Commandments - that's casuistry - and shame on Congress or anyone else who infantilizes ethical deliberation. Ethics just is a matter of the best possible judgments about certain kinds of problems human beings face daily, and which are codified over time by societies - and evolve - in the system of law. There is no other basis for law... ideally (as opposed to, say, judging in the interests of the highest bidder or through political influence). We can be more or less reasonable in those judgments and evaluations. And that should be teased out in any congressional hearing. That is, how does the nominee go about such deliberations? Law is not devoid of their influence. If it were, then law would never evolve. We could never have had a complex system of law in the first place because there would be nothing deemed right or wrong such that a society felt it necessary to codify that right/wrong in law.

So, yes, Congress sees ethics as a nagging list of rules they're expected to follow based on a rough and vague idea about what's appropriate and what's inappropriate behavior. They're wrong, though, because Congress is comprised largely of lawyers. Without any kind of discussion about the analytical content and deliberation of ethics rules the latter really are subjective (and then we should ask, who's subjectivity?). But Kinsley implies the same about ethics. This is why debates about torture, for example, are disingenuous when they refer to law alone. Such issues are ethical problems, not merely legal ones. If they were simply the latter, then I don't see why we couldn't simply devise a complex legal algorithm by computer and have computers replace judges and lawyers. That might not be such a bad thing. It would certainly be cheaper for society, and I might be able to afford a house in DC. But we would always still have to come up with the content (or data input) and that would come from ethical deliberation about appropriate content.