Given the extraordinary public ignorance about what it is judges really do, these points really can't be made often enough. A litigation partner with one of the nation's leading law firms writes:
I read your recent posts on the Alito nomination. For 30 years now I have litigated business cases. I also handle a significant number of appeals in both the federal and state systems. And, not unusually, I have acquaintances and friends who are state and federal trial and appellate judges. I mention that because I wonder at the sanity of those who think that it is realistically possible in close and controversial cases on issues of public import (and most Supreme Court cases are precisely that or they wouldn't have had cert granted) to ignore your own predilections and beliefs. In fact, it is just such cases that seem to call for a leap of faith or logic at some critical point; the means to accomplish that leap often stems from personal beliefs. It is so obvious to those of us who live in the courtroom that it is hardly worth discussion. No single fact or circumstance is more important than to know the judge who will decide the case. To take another example, every firm that I know of with a significant Supreme Court practice brings to bear on a Supreme Court brief and argument the views of former clerks to as many current Justices as possible. There is only one reason to do that, and it is not to consider the precedents or even "super precedents." (I apparently missed the law school course on those.) Roe sadly and inevitably gets all the attention in Supreme Court nominations. And it may well be that the unique pressure of the nomination process leads even a Justice Alito to be wary of reversing Roe outright and soon. But it will be for that reason that he does not do so, not because he really believes that a Justice has no ability to bring to bear his or her personal views. And even if they are disguised in the Roe context, his personal views will surely come out in many other contexts that escape close Senate scrutiny during the hearing process. (In that regard, the ability of a judge to decide cases without bringing his personal views to bear in the every day criminal or immigration or business case is almost entirely irrelevant to this issue; it is easy to keep a steady hand on the tiller when you don't much care about the destination).
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