Grand
v. Formal Decisions
Judicial
nominees must be qualified to maintain an objective "rule of law."
Tools for the task include guidelines
established notably by common law and legislation. When judges apply
these in particular cases, a "subjective" necessity arises. Personal
preferences come into play (generated naturally by their own engagement
in life).
Judicial personalities ideally lean only moderately though, left or
right; if they are to indeed particularize pragmatically
those established guidelines--in
accordance with the elastic standard of open-ended justice.
Judicial minds should thus remain open to the exigencies of exceptional
case facts. Non-partisan balance
is needed. How much, therefore,
should judges' personal leanings be influenced by any distracting
ideology--belief system--including political or religious affiliation?
Of course most people do hold deep convictions as part of their inner
direction. At issue here are beliefs that directly determine decisions.
These extraneous influences largely flow from talk with family and
friends about conjectural opinions and hearsay, essentially,
respecting whatever the "authorities" have alleged.
The greatest Anglo-American judges have probably managed to hold such
gossipy distractions to a dull roar--sufficiently at least to
professionally maintain humane empathy toward case demands for
particularized justice. These rather few comprise a "grand
tradition"--according to Karl Llewellyn's empirical study of judgments
over recent centuries--reported monumentally in THE COMMON LAW
TRADITION: DECIDING APPEALS (1960). The grand
tradition has featured exceptional attention to an
ordinarily "neglected beauty of the obvious"--revealed
among real case facts--calling for artfully flexible application of
established guidelines.
Justice Holmes represents the grand tradition. He once warned,
as precedent, against the distracting dictation of decision
by any ideological "theory"--Social Darwinism in his case--which may
have become popular in an era.
Arguably his warning, against disruptive distraction, extends to
currently controversial theories concerning what judicial methodology
nominees should follow. Ideological "conservatives" notably argue
(fuzzily) that judges should literally apply but not "make" law. When
that rhetoric is brought into focus on what actually happens in cases,
it appears they are rattling the galleries for continuation of a
judicial style directly contradicting the grand tradition.
Llewellyn himself scorned, as downright primitive, the "formal style"
of lesser judges operating over his study period. Their rather ordinary
tendency has been to apply established guidelines quite literally--as
though they were inflexible "rules." Uninspired judges tend thereby to
overlook barefaced factual peculiarities presented in cases demanding
particularized justice. The governmental system rigidifies consequently
and stagnates (out of touch with the ever-changing reality evidenced by
everyday disputes among constituents).
Now consider again that unfortunate notion heard amid the current
clamor surrounding nominee qualification: judges should not operate
beyond slavishly "literal" adherence to our vitally established
guidelines. The judicial role is virtually relegated to the rote
recitation of them--in raw form, for example, exactly as originally
written.
Obviously though the cherished guidelines must always be adapted to
changing times. Ideally they are completed
by judicial interpretation
(particularized with focus upon the actual context
of rising cases). The guidelines themselves and their realization
should remain current: realistically relevant. Then the whole system
can become more responsive (touching the actual needs of citizens for
particularized justice in changing reality).
Established guidelines include the legislative and Constitutional.
Obviously again, they must be fashioned flexibly around actual contexts
which reflect changing reality--in order to implement the functional
viability presumably intended by drafters--whose role is ideally
complemented rather than usurped by creative judging. Of
course judges may on occasion overreach their function and actively
"legislate," in effect. Fears of this danger need not taint
every glowing example of pragmatic flexibility--keeping abreast
of inexorable change--nor slander every exceptional judge
achieving it as a personal art.
Ideally therefore, judges should think independently; accordingly
exercising common sense for themselves. That art is the only apparent
instrument for fully fashioning established guidelines into elastic
justice around real dangers demanding amicable resolution.
Essentially judicial requirements boil down thus to balanced personal
maturity--
beyond
one-sided ideologies that obscure the obvious.
The Obvious Beauty of Justice
and Truth
Let us
recapitulate. Humanity embarked long ago upon a Quest for Justice.
Common sense allows us to recognize it when witnessed. Verbal
definition is elusive, however, in advance of particular conflicts;
except with such other abstractions as fairness, honesty and
balance. Other elastic appearences making society livable have been
summed up by John Keats--"beauty is truth"--and by Llewellyn's phrase,
"beauty of the obvious."
Nature has provided a Marketplace of Ideas within which these values
are slowly vindicated as a solid trinity of attainable social goals:
Beauty
overlapping justice and truth . . .
Means to
instrumentation are provided by universal common sense. Thence the
suitability of key people to vindicate values is subject to an elastic
test of rationality:
another abstract apparency difficult to define prior to
particular situations. Ideally it involves tough-minded
personal maturity. Consult the foundational 1907 Essay by William
James, on traditionally American PRAGMATISM (praising an old "slowness
to believe").
That adult mentality should enable judges (focusing on justice)
and journalists (on overlapping truth)
to see through veils of ideologically popular conjecture and hearsay.
Then they can begin formulating fairly balanced assessments of rising
situational contexts. Beauty
is vindicated on such occasions by the dramatic art of
exercising common sense--thinking responsibly for oneself-which is a
universal instrument for striving toward justice merging into truth as
well.
The proverbial objective of open-minded inquiry is to observe the
obvious "forest" through wordy "trees." Other illusions to
pierce accordingly are exemplified as follows. Judges and journalists
should be tough-minded: sensitive to self-evidently whole
truths--beyond the "half-truths" spun deceptively by one-sided
advocates. These include partisan ideologues and their "flaks" typically
dodging
the obvious.
Journalistic Justice
Another
current example of ideological obstruction appears among patently
unjust accusations of media "bias." True-believing "Republicans"
complain first that reported commentaries by journalists and other
"intellectuals" tilt unfairly to the left. Secondly they call for equal
representation of their own one-sided beliefs in media reporting.
Whether it maintains a justly rational balance
on both scores is the clearest issue appearing.
Consider the background. Evidently those "Republican" strategists have
unlimbered a tricky joke on America over recent decades. They have
managed to shift the whole spectrum of political discussion to the
right. The rather compassionate old left wing has shifted toward the
center--perhaps on its own but in part responsively--while radical
ideology is (literally) incorporated as the newly "respectable" right
wing. (This rightward extension--usurpation--features soft-minded
susceptibility to self-righteous belief and a correspondingly
"hardened" heart.)
A just balance for media could tilt back thus toward a real center
between legitimate
wings (perhaps no more extreme than John McCain and Ted Kennedy). For
this newfangled "right," so called, is obviously an original
"lunatic fringe"--disguised by partisan rhetoric as "compassionately
conservative"--but still beyond the range of rational
discourse.
* * *
Author's
Note: Lest these observations appear too "liberal:" consider
my Manifesto
as an old-fashioned Republican shamed by such modern shenanigans;
including usurpation of the GOP itself by true-believing
mongers of outrageously fragmentated fantasies.
* * *
Hypotheses
follow unfolding a balance for journalistic justice. First off,
reporting by "clinically" mature personalities will normally fall naturally
near the middle of this "adjusted" political spectrum. Not all
reporters and commentators have grown though. (Some indeed are trapped
in partisan fantasies.) At least those with professional resolve to
remain objective do set a discernible standard. It encourages
non-partisan balance.
Secondly, nature always pushes people to grow up. Maturation itself
attracts us toward that (naturally discernible) range of rational
discourse. Of course unfortunate circumstances--and fantasies--may
impede personal growth. Otherwise it is normally accompanied
by an urge toward rational moderation (to tame the "tempest" that
tempers human youth). Intelligent journalists and commentators are
presumably pulled thereby toward balance.
Advanced science and philosophy broadly support the foregoing
hypotheses. Consult notably the vanguard
psychology of Carl Jung and Abraham Maslow. They profile human
development toward moderating "individuation" and "self-actualization."
Consider as well the pioneering PBS-TV discussions between Joseph
Campbell and Bill Moyers (recorded and available as the famed POWER OF
MYTH ((1988)). They present indications from archetypal mythology and
science that justly balanced human lives have cosmic purpose; with
global learning on the direction of development. Once thus the "heart
chakra" is activated naturally, as in the ancient practice of yoga, a
personality is transformed from "animal" beginnings into a whole
newly balanced creature--the fully compassionate human.
Currently "right" radicals may respond contemptuously, however, and
attack any sign of a "bleeding heart." On such reactionary grounds they
scoff unjustly at comparatively intelligent commentaries (by Moyers
notably)--including certainly centrist ones--for falling far to the
"left." Far indeed, for radicals thereby attempt to comprehend human
moderation distantly from the cloudy perspective of ideological
advocacy. (They tend of course to obfuscate the obvious with
"half-truths"--for themselves and everyone else.)
The radical right fancies nonetheless a need for "just" reporting of
its own incomplete beliefs--among the most mature (centrist) opinions
of commentators and professors notably--who actually expose the folly
of rightist policies routinely. Savvy professionals will presumably
soon discern, in any event, the patent insecurity of ideological
partisanship. Typically its one-sided propaganda can be readily
regarded as regrettable hogwash.
As the founders ventured in our DECLARATION OF INDEPENDENCE (July 4,
1776):
We hold
these truths to be "self-evident" . . .
Beyond the Big Bugaboo* to
Self-Discovery
All of
this is pretty obvious. The subtle bugaboo still lurking in our Quest
for Justice is arguably the authoritarian
personality. This reputably
"hardcore" spoiler is exemplified by the bossy bully, on any
playground; preferring to control and manipulate others--rather than
rationally contracting
for
cooperative (if still "competitive") compromise with them. Yet when
justice merges for fulfillment into our further quest for truth, a
deeper source of "surprise" is suddenly unveiled.
Paradoxically therefore, psychology shows that an authoritarian
personality, while oppressive, is actually immature and compensating
for personal insecurity. Evidently
that
simply is what prompts any impressionable personality to believe
ideological conjectures obviously dodging "elephants." Of course these
beliefs may soon become outright tyranny or terror when embraced by aggressive
security seekers, whether "technically" authoritarian or
otherwise. See generally Eric Hoffer, THE
TRUE BELIEVER (1950).
In conclusion for now anyway, it appears that variably unstable
believers--craving more contrived certainty in life--find false
security with ideological fantasy against a raw intensity in the
frightful flux of obvious reality. As they become self-righteous,
justice and truth are de-beautified.
*
* *
* * *
By
contrast, tough-minded adults learn to look right-at hard reality
without flinching. They rather readily waive comforting murmurs to
themselves cooing questionably partial truths. Most folks probably
remember, moreover, the mightiest adults they every knew as pretty
peaceful and moderate; with solid roots in a "salt" of the earth.
Compared to their homely hardiness in everyday reality, the romantic
"movie" image of life's dramatic sound and dashing fury emerges as
another childish fantasy. (Compare Edith Hamilton's 20th Century
classics, THE ROMAN WAY versus THE GREEK WAY: more earthy.)
In humanity's unquenchable quest for justice and to discover
self-evident reality--the "Immediate" (after Santayana's REASON IN
RELIGION)--probably the crucial drama is a "mundane" inner struggle to
attain and maintain honest adulthood. Ample adventure is actually
supplied by standing singularly--balanced on a rock--in stoic survival
unbroken as an individual, without denying justice to anyone. Plato's
REPUBLIC furthermore reveals (in Book 9) the hard-won reward for
becoming a just adult: the pleasure of being alive is maximized.
Suggested here is a still hypothetical prospect of finally discerning
what is actually going on--quite obviously--around us. Accordingly a
sustained effort to stop fooling oneself starts with piercing those
overarching ideological/romantic fantasies: wishfully erected both
personally and by other folks. This resolve requires a just regard for
others, naturally, while otherwise thinking mainly for oneself. With
that integration the alert personality itself becomes an holistic
instrument
for gritty discovery--beyond ideological conjecture--leading to the
ultimate challenge:
"Know and conquer thyself." Realizing the justice of that
heroic self-control evidently requires stark rock honesty with oneself
and others. The prospect can be projected practically: as wondrously
enabling a transformational technique of inner discovery. It
includes instructive visualization of dreamy archetypal
symbols (unfolding as an inner "code" for the toughened just
life). Indeed the American Indians reportedly call the technique
"dreaming-while-awake." The requisite meditation spontaneously shows
symbolically what to look for as one strives to observe the obvious
forest through tangled trees.
"Be
still
and know . . ." (from Psalms):
Natural Directions
The quest
for justice merging into truth--within our Marketplace of Ideas--is
blatantly de-beautified by self-righteous believers and authoritarians
insisting exclusively on their
way. Society suffers at-large from such childish nonsense. It improves
though along with the moral and intellectual growth of common
citizenry. (See generally Adam Smith's "other" monument to
Natural Law from the 18th Century, THE THEORY OF MORAL
SENTIMENT.) Development entails honestly fair competition and
cooperation, naturally. Justice prevails!
The comprehensive concept at work here is a colloquial refinement of
our common teaching:
Live and
let-live . . . Obviously!