One of the most vexing things to listen to in these hearings, and indeed whenever some conservative opens his trap, is the incessant intoning of the phrase "apply the law." Of course we want judges to "apply the law."
The thing that this phrase, which sounds so appealing, completely misses is that the law is almost always not clear. If it were, why would we need lawyers? Why would we need judges? Why would we have cases and trials and appeals? You could just plug facts into some legal computer and it would spit out an answer.
The law is unclear in so many ways, and I'll use the Michael Jackson trial to illustrate.
First, there are areas where the law says one thing, but its application is unclear. In First Amendment law, with regard to California's SLAPP statute, there are public figures, and nonpublic figures. Michael Jackson is a public figure. My sister is not.
The seminal California Supreme Court case states: When an individual achieves pervasive fame or notoriety, they are properly classified as all-purpose public figures. Reader's Digest Assn. v. Superior Court, 37 Cal. 3d 244, 253 (1984). [This explains the citation system].
But then there's the grey area. How about the boy who was allegedly abused? He's pretty famous. The case generated massive publicity. He probably is not a public figure, since merely being part of litigation against a public figure is usually insufficient - you have to willingly inject yourself into the controversy. So - how about the mother? Normally, she wouldn't be one, but then, there is a compelling case that, because of the added publicity she sought out - press conferences, media appearances, etc., she could be called one.
How about someone who's dating a star? Their fame and notoriety comes only from being with the star, but they necessarily choose the attendant fame.
So - from one statement of California law, a set of unsettled questions.
And then let's look at unsettled law. The law in California is not clear of the pleading standard necessary to survive a demurrer.
How about the Fourth Amendment? To get a search warrant, you have to have probable cause. That standard has been elucidated as "information sufficient to warrant a prudent person's belief that evidence of a crime or contraband would be found in a search." Well - how much information is needed?
And then once you have it - the police must "knock and announce," ('Police, we have a warrant, open up!') wait a reasonable time, and then they can kick the door down. Two seconds isn't enough, ten minutes isn't required. What about what's in the middle? If it's a granny in a walker who might take more time to get to the door? What about if it's for drugs that can be flushed? What if the person says "I'm coming" and can be heard walking to the door?
The point is that our system of laws allows for general statements of the law that can be easily applied in some situations, but not in others. The majority of situations are unclear - they're on the edges, which is why they're in court.
So any statements of "applying the law" are disingenuous. "Clear law" is still unclear. Judges - conservative, liberal, middle of the road - make these calls all the time. Was the search reasonable? Was the force excessive? Is the person famous? Were the words defamatory? Was the warning label adequate? Did the shareholders have sufficient notice. So to pretend that conservative judges apply the law with no regard to their own views is sheer nonsense.