The Relevance of Old Wisdom

Sir Matthew Hale offers wisdom for Supreme Court confirmation hearings.

Troll the political blogosphere for more than a few minutes and you’re bound to realize that something weighty is in the offing. Namely, the confirmation of a nominee to fill the Supreme Court seat to be vacated by Justice John Paul Stevens. Yesterday, after much speculation and several leaked reports, the official announcement was made: Solicitor General Elena Kagan is the President’s choice to fill the open seat. While much uncertainty remains, we know at least one thing for certain. Ms. Kagan will endure the uniquely American experience of the Supreme Court confirmation hearing.

If recent hearings are any indication, Kagan’s will be a high-stakes test of her ability to conjugate “I’m not going to answer that question” into new and exciting iterations. (A fine measurement of judicial acumen, that.) In a welcome fit of bipartisanship, pundits on each side of the aisle agree that these hearings have become contrived political theater at best, and at worst a sad reflection of the politicization of American politics. These concerns notwithstanding, the hearings will happen. To wit, the weeks since Stevens announced his retirement have seen legal commentators from across the political spectrum offering questions that in their considered opinion merit the ear of the Senate Judiciary Committee.

Many of these center on the individual mandate provision of the recently passed health care legislation. Indeed, Michael Barone has argued that the mandate will be at the center of the confirmation debate. Such questions could concern the scope of the commerce clause, the constitutionality of a law that requires individuals to purchase a service from a private company, and everything in between.

Potential questions are certainly not limited to health care. In a National Review symposium that appeared shortly after Stevens’ announcement Stephanie Hassler, who advised the Judiciary Committee during Samuel Alito’s hearings, suggested asking the nominee, “What is the role of the Supreme Court in national-security matters?” And, “Should the Court give deference to the executive branch in foreign-policy decisions?” In the same piece George Mason Law School professor Neomi Rao offers a question about interpretation: “Does fidelity to the law allow the meaning of the Constitution to evolve over time?”

To be sure, these are good questions, the answers to which I would be very interested to hear. Unfortunately, the likelihood of questions like these appearing one day on the hearing’s transcript is inversely proportional to their quality. That is, the more incisive and potentially revelatory of the nominee’s judicial philosophy the question is the less likely it is to be asked. Thus, it is in the spirit of futility that I make a humble contribution of my own to the committee’s “To Ask Kagan” list.

Sir Hale’s Resolutions

In a recent interview for BBC Radio Tom Bingham, former Senior Law Lord of the United Kingdom, discussed his most recent book. In The Rule of Law Bingham argues for the importance of the rule of law and, in so doing, recounts its historical development. Among the twelve milestones he identifies are the Resolutions of Sir Matthew Hale, Lord Chief Justice of England from 1671 to 1676. Hale’s Resolutions, or as he termed them “things necessary to be continually had in remembrance,” are as follows:

  1. That in the administration of justice, I am entrusted for God, the King and Country; and therefore
  2. That is be done (1) Uprightly (2) Deliberately (3) Resolutely.
  3. That I rest not upon my own understanding or strength, but implore and rest upon the direction and strength of God.
  4. That in the execution of justice, I carefully lay aside my own passions, and not give way to them however provoked.
  5. That I be wholly intent upon the business I am about, remitting all other cares and thoughts as unseasonable and interruptions.
  6. That I suffer not myself to be prepossessed with any judgement at all, till the whole business and both parties be heard.
  7. That I never engage myself in the beginning of any cause, but reserve myself unprejudiced till the whole be heard.
  8. That in business capital, though by nature prompts me to pity, yet to consider that there is also pity due to the country.
  9. That I be not too rigid in matters purely conscientious, where all the harm is diversity of judgement.
  10. That I be not biassed with compassion to the poor, or favour to the rich in point of justice.
  11. That popular or court applause or distaste, have no influence into any thing I do in point of distribution of justice.
  12. Not to be solicitous what men will say or think, so long as I keep myself exactly according to the rule of justice.
  13. If in criminals it be a measuring cast, to incline to mercy and acquittal.
  14. In criminals that consist merely in words when no more harm ensues, moderation is no justice.
  15. In criminals of blood, if the fact be evident, severity in justice.
  16. To abhor all private solicitations of whatever kind soever and by whomsoever in matters depending.
  17. To charge my servants (1) Not to interpose in any business whatsoever (2) Not to take more than their known fee (3) Not to give undue preference to causes (4) Not to recommend counsel.
  18. To be short and sparing at meals that I may be fitter for business.

Old Wisdom, New Questions

Now, clearly several of Hale’s Resolutions couldn’t plausibly factor into a question that has a chance of seeing the light of day. For example, the mention of “God” in 1, 2, and 3 all but disqualifies them from an appearance. The “servants” in Resolution 17 would have to be replaced by “clerks.” And Resolution 18, while exhibiting the apogee of juridical commitment, probably doesn’t meet the threshold of relevance required to gain access to the lips of a United States Senator.

It wouldn’t take much, though, to translate the remaining Resolutions into perfectly acceptable questions. Given the nature of the issues addressed by the Court, the Resolutions pertaining to sentencing would require some modification. Nonetheless, they could give rise to a question about the limits of punitive damages (a pertinent issue after the on-going oil spill in the Gulf). Resolution 8 could be rephrased: What informs your approach to cases involving the death penalty? Such a question would provide a seamless segue to another about Kagan’s interpretation of the 8th Amendment’s prohibition of “cruel and unusual punishment.” The Resolutions touching on justice and equality (10, 11, 12, 14, and 15) could factor into questions about her understanding of these concepts and the demands of each. In a day when some justices find rights lurking in the shadows of various constitutional provisions, such questions could not be more important.

While I’m not overly optimistic that questions of this sort would receive much more than the now-standard evasion, the hope of eliciting meaningful responses from judicial nominees depends primarily on making meaningful inquiries. Questions along the lines of Hale’s Resolutions would eschew the political grandstanding that has come to characterize confirmation hearings. More important, they would get to the heart of the tasks and expectations appropriate to the position Elena Kagan hopes to hold. Sir Hale’s “things necessary to keep in remembrance” are proof positive of the Churchillian maxim that “all wisdom is not new wisdom.” And wisdom would be a welcome addition to the upcoming hearings.

1 Comment

  • May 12, 2010

    Bryan Wandel

    Three cheers for Matthew Hale, an articulate exponent of the doctrine of the ancient constitution. Much of the constitutional thought of Burke can be found, with less flair, in Hale’s writings. However, he died only about 8 years before royalist theorists successfully used Filmer to thwart the constitutionalists and the theoretical authority of Parliament.

    My question, though, is this: none of the proposed questions would directly address the American issues of the relation of law to the written Constitution, the relation of the words of the Constitution to its application, or the extent to which vague phrases of the Constitution must be fitted to changing circumstances; so what would Hale’s maxims contribute to helping understand the specific and restricted kind of justice our judges are bound to? Your second last paragraph indicates that they would be most helpful as a lead-in to Constitutional questions. Do you think this would provoke a better answer?