CONSTITUTIONAL MYTHS & REALITIES - Eight of 'em, so pay attention! - Part VI

This is part six in an eight part series adapted from a speech delivered on April 29, 2003, at a Hillsdale College National Leadership Seminar in Dearborn, Michigan. Reprinted by permission from Imprimis, the national speech digest of Hillsdale College. [Part V is here]

Myth or Misconception 6: The role of the judge in interpreting the Constitution is to do justice.

The role of a judge is to do justice under law, a very different concept. Each of us has his or her own innate sense of right and wrong. This is true of every judge I have ever met. But judges are not elected or appointed to impose their personal views of right and wrong upon the legal system. Rather, as Justice Felix Frankfurter once remarked, "The highest example of judicial duty is to subordinate one's personal will and one's private views to the law." The responsible judge must subordinate his personal sense of justice to the public justice of our Constitution and its representative and legal institutions.

I recall one judicial confirmation hearing a number of years ago when I was working for the Senate Judiciary Committee. The nominee was asked, "If a decision in a particular case was required by law or statute and yet that offended your conscience, what would you do?" The nominee answered, "Senator, I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience." He went on to explain: "I was born and raised in this country, and I believe that I am steeped in its traditions, its mores, its beliefs and its philosophies, and if I felt strongly in a situation like that, I feel that it would be the product of my very being and upbringing. I would follow my conscience." To my mind, for a judge to render decisions according to his or her personal conscience rather than the law is itself unconscionable.