Has There Not Been Enough Politicization Already?
The Washington Post (or WaPo, as we call it) ran a story yesterday that is just absurd. See, the Post seems to think that we would all be better off if a few more politicians were nominated to the Court. I do not think there are too many people that would agree with this statement, if for no other reason than the politics surrounding the Court are running high already.
Anyone who has even paid a wisp of attention to the Court recently has seen just how much politics already factor into it. The partisan attacks, the slanderous statements made about these nominees, and the opportunistic obstruction made by the Democrats; these are just three key pieces of evidence showing how much the idea of politics has permeated this honorable Court.
But nothing has emphasized it more than the day Justice O’Connor stepped down. Before she even finished making the announcement, BOTH sides began maneuvering and making demands of the administration. You need to appoint a woman! You need to appoint someone like O’Connor to maintain the balance of the Court! Do not appoint a conservative; they will never make it through confirmation.
But even the WaPo is making demands. They want more politicians on the Court. They cite the fact that Chief Justice Warren was a former governor. Yes, and the point it? Sen. John Cornyn from Texas used to sit on the Texas Supreme Court, but he is a senator now. His past should have little to do with his legislative experience, as his judicial experience has little to do with his job as a legislator now. The two are separate sides of the same coin. But to read this piece from the WaPo, one would get the distinct idea that they wish the two were merged together. Just read this excerpt below.
Is that sort of experience important? Last year, at a remarkable seminar at Yale Law School, a group of former Supreme Court law clerks who served a half-century ago discussed the behind-the-scenes story of the 1954 ruling in Brown v. Board of Education. That decision actually took two years to reach. It was unanimous in the end, spanning the full range of ideology on the court from William O. Douglas on the left to Felix Frankfurter on the right. It could easily have been 5 to 4, given the issues at stake, the intensity of views and the breathtaking change the decision represented.
Frankly, if the current court had been serving back then, the decision probably would have been 5 to 4, like so many other highly charged and controversial decisions of recent years. What is the difference? The Warren Court in 1954 had five members who had been politicians -- three former U.S. senators (one of whom had also been a mayor of Cleveland), one state legislator and a former governor, Chief Justice Earl Warren.
The former clerks talked about the way in which Warren, Justices Hugo Black, Sherman Minton, Frankfurter and others worked patiently to build consensus, not just a narrow majority. When it wasn't forthcoming the first time the case was up, they put it off to the next year. Liberals and conservatives alike understood how important it was for society, and for the credibility of the court, to find that consensus and put forward a united front. The fact that several of them had been schooled in an environment of coalition-building -- the legislative process -- was a key to that sensitivity and to the final result.
The Warren court of the 1950s was quite typical of American history up to that point, in that justices often came from political backgrounds. Only one of the nine justices in 1954, Minton, had served on a U.S. court of appeals, and he had been a senator before that. Contrast that with the current Supreme Court -- on which seven of the nine justices have served on a federal court of appeals and one other had service on a state court of appeals. The only current member without a background as a judge, interestingly, is Chief Justice William Rehnquist.
So, for the WaPo, the most important thing they cite is a consensus. It is not what the judges proper role is, which is the interpretation of the law. They want a consensus built amongst the justices on the Court. Consensus and "coalition-building." (Is that not amazing? They are in favor of building a coalition on the Court, but savaged Pres. Bush for building a coalition for the GWOT? That is funny.)
And does it matter that Chief Justice Rehnquist never served as a judge prior to his ascension to the Court? It does not to me, and to a lot of people I know, they agree. He is one of the best sitting chief justices the Court has ever had. In my opinion, he was the best one the 20th Century ever had. But being a justice on the high court does not mean one must be a judge. One only need be a lawyer, and a grasp of the law. (My personal, favorite choice for a jurist to the high court would be Mark Levin, but I am biased.) But the WaPo is not done. The continue to explain their "idea."
Why the change? Over the past 50 years, the federal courts have increasingly made public policy, from settling details on airborne emissions to intervening in disputes between telephone and cable companies to setting guidelines on abortion and sodomy. The increased policy role has come about in part because Congress has passed the buck on controversial decisions to the courts, and in part because judges, left and right, have been willing and eager to step in to fill vacuums. As our politics have become more ideological and more partisan, lifetime court appointments have thus become more important and valuable.
Where is it written that if Congress opts not to address an issue, it falls to the courts to do so? It is not written like that. The legislative body of the federal government, or the state governments, makes the law. Not the courts. Their job is to interpret it—to discern its meaning—but they are not to make mandates from the bench. Court appointments have become important due to the fact that we need the activist thinkers off the bench, and we need originalist jurists taking their place; judges that will not write law, but explain the law as it stands, and write nothing further into it or disregard it completely.
Choosing judges, especially at the Supreme Court level, has taken on a heightened importance -- and presidents and their partisans want to make sure they know what they are getting. A track record at the federal appeals court level is a much safer predictor of behavior at the next level up than service in the U.S. Senate, or as a governor or in other political office.
The president knows what he is getting in the nominees he chooses. He has chosen them wisely, and whereas, on the odd occasion, we may end up with a Souter, or a Kennedy, or an O’Connor, the dozen or so names the president is considering now are among the best and the brightest on the bench right now.
But having a court that consists largely or only of non-politicians has serious costs for the public. Not only are judges less inclined to think broadly of the country and its social and political divide, they are more likely to look at decisions with tunnel vision, not thinking through the problems of maintaining the court's standing with the public and of implementing difficult and divisive decisions.
"Tunnel vision" is precisely what I expect out of a jurist on the bench. He should be looking at the law, its origin, and its meaning. Foreign law has no basis in their decision. UN/International law has no bearing on it. And the public discourse, i.e., protests or activists, has nothing to do with their decision. Their decision lies only within the confines of the law. Everything on the outside is irrelevant. Every instance of serious judicial activism has resulted in some outside force. Take the case of Kelo; in this case, the state cited an increase in tax revenues was the reason why they wanted the homes in New London, Connecticut. But the law states that they cannot do that without a citation of "public use" and "just compensation." Further, the "public use" the Framers spoke of was in reference roads, hospitals, schools, etc. It was not in reference to a private business wishing to develop land so the states or municipalities would have more tax revenue in their coffers.
Moreover, since much of what the court does is to sort out legislative intent, those without political experience have no real sense of how a legislature works and no direct idea of what legislative intent really means in the crucible of the legislative process. Politicians who have run for office and been in campaigns also know how politics works; the ignorance of basic politics shows up in the court's decisions on political issues such as redistricting.
And the author of this piece, from the American Enterprise Institute, truly shows his ignorance with this paragraph. Again, the job of the courts is to interpret the law. They need not understand the "legislative process" to understand the law. The law is in black-and-white, and means what it says. The politics surrounding that law is completely and totally irrelevant. It does not factor into the decision the court is going to hand down.
The idea of injecting more politics into a branch of the government that has too much within it as it stands scares the hell out of me. I am working towards being a lawyer, and it is not easy. I would hate to see that I have to learn the inner workings of a legislature at the same to time to fully "understand" the law. I disagree. If we have a law that states I cannot murder someone, why do I need to know the political ideas behind it? Is it not enough that the law says I cannot do it? Do we have poli-psycho-analyze everything? I think that people like this gentleman from the AEI should be silent, and let the process of nominating the most qualified jurist for the job go forward. Keep your opinions to yourself, because frankly they are uneducated and idiotic at best. If you cannot say something with a level of intelligence, then just be silent.
The Bunny ;)
The Washington Post (or WaPo, as we call it) ran a story yesterday that is just absurd. See, the Post seems to think that we would all be better off if a few more politicians were nominated to the Court. I do not think there are too many people that would agree with this statement, if for no other reason than the politics surrounding the Court are running high already.
Anyone who has even paid a wisp of attention to the Court recently has seen just how much politics already factor into it. The partisan attacks, the slanderous statements made about these nominees, and the opportunistic obstruction made by the Democrats; these are just three key pieces of evidence showing how much the idea of politics has permeated this honorable Court.
But nothing has emphasized it more than the day Justice O’Connor stepped down. Before she even finished making the announcement, BOTH sides began maneuvering and making demands of the administration. You need to appoint a woman! You need to appoint someone like O’Connor to maintain the balance of the Court! Do not appoint a conservative; they will never make it through confirmation.
But even the WaPo is making demands. They want more politicians on the Court. They cite the fact that Chief Justice Warren was a former governor. Yes, and the point it? Sen. John Cornyn from Texas used to sit on the Texas Supreme Court, but he is a senator now. His past should have little to do with his legislative experience, as his judicial experience has little to do with his job as a legislator now. The two are separate sides of the same coin. But to read this piece from the WaPo, one would get the distinct idea that they wish the two were merged together. Just read this excerpt below.
Is that sort of experience important? Last year, at a remarkable seminar at Yale Law School, a group of former Supreme Court law clerks who served a half-century ago discussed the behind-the-scenes story of the 1954 ruling in Brown v. Board of Education. That decision actually took two years to reach. It was unanimous in the end, spanning the full range of ideology on the court from William O. Douglas on the left to Felix Frankfurter on the right. It could easily have been 5 to 4, given the issues at stake, the intensity of views and the breathtaking change the decision represented.
Frankly, if the current court had been serving back then, the decision probably would have been 5 to 4, like so many other highly charged and controversial decisions of recent years. What is the difference? The Warren Court in 1954 had five members who had been politicians -- three former U.S. senators (one of whom had also been a mayor of Cleveland), one state legislator and a former governor, Chief Justice Earl Warren.
The former clerks talked about the way in which Warren, Justices Hugo Black, Sherman Minton, Frankfurter and others worked patiently to build consensus, not just a narrow majority. When it wasn't forthcoming the first time the case was up, they put it off to the next year. Liberals and conservatives alike understood how important it was for society, and for the credibility of the court, to find that consensus and put forward a united front. The fact that several of them had been schooled in an environment of coalition-building -- the legislative process -- was a key to that sensitivity and to the final result.
The Warren court of the 1950s was quite typical of American history up to that point, in that justices often came from political backgrounds. Only one of the nine justices in 1954, Minton, had served on a U.S. court of appeals, and he had been a senator before that. Contrast that with the current Supreme Court -- on which seven of the nine justices have served on a federal court of appeals and one other had service on a state court of appeals. The only current member without a background as a judge, interestingly, is Chief Justice William Rehnquist.
So, for the WaPo, the most important thing they cite is a consensus. It is not what the judges proper role is, which is the interpretation of the law. They want a consensus built amongst the justices on the Court. Consensus and "coalition-building." (Is that not amazing? They are in favor of building a coalition on the Court, but savaged Pres. Bush for building a coalition for the GWOT? That is funny.)
And does it matter that Chief Justice Rehnquist never served as a judge prior to his ascension to the Court? It does not to me, and to a lot of people I know, they agree. He is one of the best sitting chief justices the Court has ever had. In my opinion, he was the best one the 20th Century ever had. But being a justice on the high court does not mean one must be a judge. One only need be a lawyer, and a grasp of the law. (My personal, favorite choice for a jurist to the high court would be Mark Levin, but I am biased.) But the WaPo is not done. The continue to explain their "idea."
Why the change? Over the past 50 years, the federal courts have increasingly made public policy, from settling details on airborne emissions to intervening in disputes between telephone and cable companies to setting guidelines on abortion and sodomy. The increased policy role has come about in part because Congress has passed the buck on controversial decisions to the courts, and in part because judges, left and right, have been willing and eager to step in to fill vacuums. As our politics have become more ideological and more partisan, lifetime court appointments have thus become more important and valuable.
Where is it written that if Congress opts not to address an issue, it falls to the courts to do so? It is not written like that. The legislative body of the federal government, or the state governments, makes the law. Not the courts. Their job is to interpret it—to discern its meaning—but they are not to make mandates from the bench. Court appointments have become important due to the fact that we need the activist thinkers off the bench, and we need originalist jurists taking their place; judges that will not write law, but explain the law as it stands, and write nothing further into it or disregard it completely.
Choosing judges, especially at the Supreme Court level, has taken on a heightened importance -- and presidents and their partisans want to make sure they know what they are getting. A track record at the federal appeals court level is a much safer predictor of behavior at the next level up than service in the U.S. Senate, or as a governor or in other political office.
The president knows what he is getting in the nominees he chooses. He has chosen them wisely, and whereas, on the odd occasion, we may end up with a Souter, or a Kennedy, or an O’Connor, the dozen or so names the president is considering now are among the best and the brightest on the bench right now.
But having a court that consists largely or only of non-politicians has serious costs for the public. Not only are judges less inclined to think broadly of the country and its social and political divide, they are more likely to look at decisions with tunnel vision, not thinking through the problems of maintaining the court's standing with the public and of implementing difficult and divisive decisions.
"Tunnel vision" is precisely what I expect out of a jurist on the bench. He should be looking at the law, its origin, and its meaning. Foreign law has no basis in their decision. UN/International law has no bearing on it. And the public discourse, i.e., protests or activists, has nothing to do with their decision. Their decision lies only within the confines of the law. Everything on the outside is irrelevant. Every instance of serious judicial activism has resulted in some outside force. Take the case of Kelo; in this case, the state cited an increase in tax revenues was the reason why they wanted the homes in New London, Connecticut. But the law states that they cannot do that without a citation of "public use" and "just compensation." Further, the "public use" the Framers spoke of was in reference roads, hospitals, schools, etc. It was not in reference to a private business wishing to develop land so the states or municipalities would have more tax revenue in their coffers.
Moreover, since much of what the court does is to sort out legislative intent, those without political experience have no real sense of how a legislature works and no direct idea of what legislative intent really means in the crucible of the legislative process. Politicians who have run for office and been in campaigns also know how politics works; the ignorance of basic politics shows up in the court's decisions on political issues such as redistricting.
And the author of this piece, from the American Enterprise Institute, truly shows his ignorance with this paragraph. Again, the job of the courts is to interpret the law. They need not understand the "legislative process" to understand the law. The law is in black-and-white, and means what it says. The politics surrounding that law is completely and totally irrelevant. It does not factor into the decision the court is going to hand down.
The idea of injecting more politics into a branch of the government that has too much within it as it stands scares the hell out of me. I am working towards being a lawyer, and it is not easy. I would hate to see that I have to learn the inner workings of a legislature at the same to time to fully "understand" the law. I disagree. If we have a law that states I cannot murder someone, why do I need to know the political ideas behind it? Is it not enough that the law says I cannot do it? Do we have poli-psycho-analyze everything? I think that people like this gentleman from the AEI should be silent, and let the process of nominating the most qualified jurist for the job go forward. Keep your opinions to yourself, because frankly they are uneducated and idiotic at best. If you cannot say something with a level of intelligence, then just be silent.
The Bunny ;)
posted by Syd And Vaughn | 10:04 AM
1 Comments:
Bunny,
Happy Independence Day!
You raise an interesting point in your post. The Post has no idea what they are talking about when they suggest a move such as this. You are correct: There is enough "politics" involved in the Court today, and they are politics that need to go.
And I wanted to note that the idea the Post furthered, about the need of judges to "understand" the legislative process is similar to that of the thoughts of Justice Breyer. He is perhaps the Court's most steadfast proponent of the value of legislative history in legal interpretation.
Legislative history, or understanding the legislative process should have no bearing on a decision being rendered by the Court. I, like you and Publius (I believe, though I might be wrong), opt to follow the ideas of Rehnquist, Scalia, and Thomas.
What does the law say? What does it mean? What is the historical reference of the law (i.e., the time the law was passed)? What is the language of the time frame? What did our Framers state about such ideas? I think you get the picture. There is a lot of responsibility on the shoulders of a judge, and the research is tireless and, for the most part, quite thankless.
But their "burden" does not give them the right to invoke law that doesn't exist. Either it does, or it doesn't. If it doesn't, then they know what must be done. The case is to be remanded back to the court of its origin. If it does apply, then rule, and do so according to the law. Do not invoke "extra-Constitutional" rights or authority into the decision.
Too many people look at the Courts like they were a lottery; they may win the case, but they want an extra prize. Law, as we know, doesn't work that way. You win, you go home. You lose, you go home. There are no parting gifts, and there is no "home" version of the US Supreme Court you and your family may play.
The Post, like most of the mainstream media, sees the high court in a certain "realm" where their ideology rules the day. Reality is much different, and it is that reality that should come crashing down to shut the fools up once and for all.
Mistress Pundit
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