OYEZ! OYEZ! God Rest His Honorable Soul
Last night, we lost of the greatest Chief Justices the Supreme Court has ever had. Last night, Chief Justice William Rehnquist lost his battle to thyroid cancer, and passed away to his eternal reward.
Chief Justice of the United States, was born in Milwaukee, Wisconsin, October 1, 1924. He married Natalie Cornell, now deceased, and has three children— James, Janet, and Nancy. From 1943–1946 he served in the U.S. Army Air Forces. He received a B.A., M.A., and LL.B. from Stanford University and an M.A. from Harvard University. He served as a law clerk for Justice Robert H. Jackson of the Supreme Court of the United States during the 1951 and 1952 Terms, and practiced law in Phoenix, Arizona from 1953–1969. He served as Assistant Attorney General, Office of Legal Counsel from 1969–1971. President Nixon nominated him to the Supreme Court, and he took his seat as an Associate Justice on January 7, 1972. Nominated as Chief Justice by President Reagan, he assumed that office on September 26, 1986.
The above is taken directly from the Supreme Court’s website. Not only does it give a brief and accurate biography, but it shows the accomplishments this man had in his life. Few other Chief Justices can come to the level of Rehnquist’s jurisprudential knowledge. A master poker player, Rehnquist had the media and bloggers aplenty guessing when he would finally step down. Other than his death, the other thing that is sad about his passing is he couldn’t hold onto see one of his former law clerks ascend to the high court in Judge John G. Roberts.
But, with his passing comes another opportunity for the president to appoint another originalist jurist to the high court. Now, I’ve been speculating for a long time about who the president would choose to replace Rehnquist when he stepped down. Now, there’s no "if’s." Rehnquist is done. He’s finished a long and illustrious career to his nation. So, the skirmish has just turned into a war. And this is a war for keeps because the future of the court is at stake. Marcie and I talked about this last night. This is what we agree on.
Our first move—after passing condolences onto Rehnquist’s family—would be to appoint Associate Justice Antonin Scalia to the vacancy of the Chief Justice. This is not only a sound move, but he, like Roberts, can’t really be stopped. If there was anything truly extreme about Scalia, in 1986 the Democrats would have dragged out the pitchforks and the torches for him. Instead, they did that for Rehnquist when Reagan elevated him to the spot he vacated last night. Scalia sailed through confirmation, and received, if memory serves me correctly, a Senate vote of 98-0. Hardly the vote total for a controversial justice. Scalia also has a level of charm he used in his initial hearings that seemed to put the Democrats at ease.
Next, to replace Scalia, Pres. Bush needs to choose a solid originalist, and one that is just as "wholesome" and "likable" as Roberts is. That man is Judge J. Michael Luttig, of the 4th Circuit Court of Appeals. Many people will remember that we were pushing him hard prior to the Roberts nomination, and we’re still pushing him. Cited, in it’s entirety, is a speech that Luttig gave to the ACS Conference in 2003. As we can see, Luttig despises the idea of judicial activism, which is the largest front we face in the war for the courts.
There are a myriad of definitions of judicial activism, and we wouldn’t have time to discuss even a fraction of them, at least in a meaningful way, in the span of time that we’ve set aside. But I believe that all of the various definitions come down to this: Judicial activism, properly defined, is simply the substitution of a judge’s personal predilections for law, whatever form that substitution takes. That is, judicial activism exists whenever the judicial officer gives effect to his view of what law ought to be, rather than what law actually is.
This said, permit me to advance for consideration the following view, which I would like to believe would be unexceptionable and consensus, but which I recognize will probably be neither, and indeed is rejected, even by many of my own colleagues on the federal bench. Judicial activism, by whomever it is practiced, is to be condemned. Assuming arguendo, as is often simplistically and misleadingly suggested, that the affinities of the so called "conservative jurists" run toward big business, law enforcement, the prosecutor, or the government in general, then it is no more legitimate for that jurist to infuse into the law his personal affinity for these institutional entities, than it is for the so called "liberal jurist" to infuse into the law what is no less often simplistically and misleadingly suggested is his different affinity for the individual plaintiffs who claim to have been harmed at the hand of these institutional defendants.
The conservative jurist who advocates infusing his personal views into law ought to admit outright that such is open confirmation of the legitimacy of the charge against his jurisprudence, that it is no different from the liberal activism that he criticizes, except in his pursuit of a different set of political objectives. Of course, so also should the liberal jurist be prepared to admit that the introduction of his different subjective dispositions into the same calculus, also to be activism. And it should not matter to either jurist, that his activism is employed in moderation. The conservative and liberal jurist alike should regard activism in moderation as no more defensible than activism in excess, and the attempted defense of such as folly.
Nor should activism be viewed by either jurist as justifiable for the reason that it is employed in pursuit of the particular objects for which he has affinity, whatever those objects be. Indeed, each, the conservative and the liberal jurists, should believe it most important that he restrain himself precisely when the objects of his affinity are before him. He should believe that his activism is not justified by the ends it seeks to secure, any more than another’s activism can be justified by the different ends that it seeks to secure.
There is no such thing as good or justifiable judicial activism. All activism is in defiance of law - law, that is, defined as the politics of the People, not the politics of un-elected, life-tenured federal judges. The conservative jurist, as the liberal jurist, should defend with every ounce of his judicial might, the imperative that the party who comes before him entitled under law to prevail, must prevail, and that neither the plaintiff’s nor the defendant’s likelihood of prevailing should be dependent in any way at all upon the personal predilections of the particular judges assigned to his case, however laudable those predilections might be.
He should not decide for the institutional entity and against the individual, or for the individual against the institutional, because of any affinity for either, but rather only because that decision is required of him by law. Just as he should not decide for, or against, any litigant because of any personal view as to the wisdom or desirability of the particular statute, or other authority, that in that particular case, he’s interpreting and applying.
The conservative jurist and the liberal jurist, equally, should believe that to embrace a jurisprudence that recognizes a role for the purely personal view of the judge and the decision-making process, even one that pledges intelligence and moderation in its performance, and claims virtue as its object, is nothing more than to engage the judicial activist possessed of a different political or social agenda on the latter’s own terms.
Both the conservative and the liberal jurist should believe that this is an engagement that cannot be won by one or the other, and ought not be won by either. For if either jurist so disposed is victorious in such an engagement, then law will have become nothing beyond the wield of raw power by whomever happens at the time to have greater numbers on the federal courts. Listen carefully to this, if to nothing else that I have to say. If, as has been asserted, a judge’s personal dispositions may properly become a consideration in the decision of specific cases before the court; and if, as has been asserted, the liberal jurists’ sympathies most naturally extend to individual plaintiffs, and the conservative jurists’ sympathies most naturally extend to the institutional entities of society; and if the numbers of liberal jurists at the time exceed the numbers of conservative jurists; then plaintiffs, rather than society’s institutional entities, will prevail in the courts.
If, on the other hand, at any given time, the numbers of conservative jurists exceed the numbers of liberal jurists, then the collective entities of society, rather than the individual plaintiffs, will prevail in the nation’s courts. But, whether the result be one or the other, it will be so, not because of law, but in repudiation of law. Live by the sword. Die by the sword.
If one is unwilling to die by the sword he wields himself, then he should accept that which the activist rejects – that law is an institution, separate and apart from politics. And that those charged with the sacred responsibility of its interpretation must forsake their personal politics the moment they put on the judicial robe. For only through the complete forsaking of personal politics will the judicial result reached be the expression, not of the politics of the particular judge, but of the politics of the People, from whom the judge derives his power. Acceptance of this rule of law as so defined, it should go without saying, entails acceptance by the jurist that these principles are as important a restraint upon him, as he argues they ought be upon others.
As a consequence, he should understand, he cannot even the score for what he perceives to be the wrongs of the past, and at the same time remain faithful to these principles by which he is externally bound, internally binds himself, and by which he expects those of different political mind also to be bound. He should accept the limitation that these principles place on his loaned power, if for no other reason than out of the simple conviction that requiter would be a betrayal of both.
I believe that these are the principles to which all jurists, however they are labeled, or label themselves, should adhere, if the law is to be anything different than, if it is to be anything beyond, mere partisan politics. If these simple principles are followed, I believe that raw partisan politics and the complete politicization of the law that it threatens will suffer defeat as it ought, and the rule of law will prevail as it ought. And if at the end, such proves to be the product, then for all its rancor, the debate that we are currently having over the courts and over law itself will have been worth the considerable price it will have exacted.
Thus stated, the fair question arises of how do we first, detect, and then, having detected, purge, judicial activism from the decision-making process? As we open our discussion, let me suggest this, which we can explore in greater detail: At the end of the day, other than conscience, it is only intellectual honesty and intellectual rigor, and the accountability that these render possible, that can restrain a judiciary that serves for life, and at the pleasure of no one. And it is precisely because the intellectual honesty and analytical scrupulousness of conventional jurisprudence, and the resulting accountability, do serve as a bridle upon the courts, that honesty and scrupulousness have been eschewed in many quarters, in favor of the intellectually lazier and jurisprudentially misbegotten enterprise of decision by personal policy preference.
If we were to restore intellectual honesty and analytical rigor to judicial decision-making, as well as to the public dialogue over the courts and over law, I believe we would find that the differences among us are not as great as the current polarizing rhetoric suggests. Indeed, through an honest and good faith dialogue, I suspect we might even bring truce to the destructive political war that is being waged over the courts and stem the further politicization of law, which already must be counted as among this war’s heavy costs.
Luttig is a good judge, and would make a fine choice for the high court. Despite our own personal preferences for elevating Scalia, we would accept Luttig to take the Chief Justice’s seat, as well. It would not be imperative that Scalia ascend, however for his years on the court, we would hope that he would at least be considered. He, like Rehnquist, has an extremely sharp legal mind, and isn’t afraid to go against the rest of the court if he knows he’s right. Thus far, in my own personal readings of the Supreme Court decisions, there is nary a decision I have read written by Scalia that I haven’t agreed with.
Luttig offers us the same thing, only slightly less abrasive. Scalia’s opinions can be the most basic dissertations on the law, or they can be scathing indictments of rogue law from his colleagues. Luttig would be no less opinionated when it comes to admonishing court members for their lack of intelligence when it comes to the workings—the very heart of the interpretations—of the law. In our opinion, the Asylum would support either elevating Scalia, and nominating Judge Luttig to his vacant seat, or appointing Luttig to the new vacancy, directly, on the court right now.
And, Luttig has done one thing that many on the Left are trying to hang Roberts over. Roberts didn’t recuse himself from the Hamdan case. He didn’t have to. Roberts engaged in no extra-jurisprudential reasoning. He stuck to the law, and rendered his decision. Luttig, when learning that a case was coming before the 4th Circuit Court immediately recused himself from the bench for that case. What was the case? A death penalty appeal from the man who murdered his father. Now, how can the Left attack a man like Luttig?
Publius II
Last night, we lost of the greatest Chief Justices the Supreme Court has ever had. Last night, Chief Justice William Rehnquist lost his battle to thyroid cancer, and passed away to his eternal reward.
Chief Justice of the United States, was born in Milwaukee, Wisconsin, October 1, 1924. He married Natalie Cornell, now deceased, and has three children— James, Janet, and Nancy. From 1943–1946 he served in the U.S. Army Air Forces. He received a B.A., M.A., and LL.B. from Stanford University and an M.A. from Harvard University. He served as a law clerk for Justice Robert H. Jackson of the Supreme Court of the United States during the 1951 and 1952 Terms, and practiced law in Phoenix, Arizona from 1953–1969. He served as Assistant Attorney General, Office of Legal Counsel from 1969–1971. President Nixon nominated him to the Supreme Court, and he took his seat as an Associate Justice on January 7, 1972. Nominated as Chief Justice by President Reagan, he assumed that office on September 26, 1986.
The above is taken directly from the Supreme Court’s website. Not only does it give a brief and accurate biography, but it shows the accomplishments this man had in his life. Few other Chief Justices can come to the level of Rehnquist’s jurisprudential knowledge. A master poker player, Rehnquist had the media and bloggers aplenty guessing when he would finally step down. Other than his death, the other thing that is sad about his passing is he couldn’t hold onto see one of his former law clerks ascend to the high court in Judge John G. Roberts.
But, with his passing comes another opportunity for the president to appoint another originalist jurist to the high court. Now, I’ve been speculating for a long time about who the president would choose to replace Rehnquist when he stepped down. Now, there’s no "if’s." Rehnquist is done. He’s finished a long and illustrious career to his nation. So, the skirmish has just turned into a war. And this is a war for keeps because the future of the court is at stake. Marcie and I talked about this last night. This is what we agree on.
Our first move—after passing condolences onto Rehnquist’s family—would be to appoint Associate Justice Antonin Scalia to the vacancy of the Chief Justice. This is not only a sound move, but he, like Roberts, can’t really be stopped. If there was anything truly extreme about Scalia, in 1986 the Democrats would have dragged out the pitchforks and the torches for him. Instead, they did that for Rehnquist when Reagan elevated him to the spot he vacated last night. Scalia sailed through confirmation, and received, if memory serves me correctly, a Senate vote of 98-0. Hardly the vote total for a controversial justice. Scalia also has a level of charm he used in his initial hearings that seemed to put the Democrats at ease.
Next, to replace Scalia, Pres. Bush needs to choose a solid originalist, and one that is just as "wholesome" and "likable" as Roberts is. That man is Judge J. Michael Luttig, of the 4th Circuit Court of Appeals. Many people will remember that we were pushing him hard prior to the Roberts nomination, and we’re still pushing him. Cited, in it’s entirety, is a speech that Luttig gave to the ACS Conference in 2003. As we can see, Luttig despises the idea of judicial activism, which is the largest front we face in the war for the courts.
There are a myriad of definitions of judicial activism, and we wouldn’t have time to discuss even a fraction of them, at least in a meaningful way, in the span of time that we’ve set aside. But I believe that all of the various definitions come down to this: Judicial activism, properly defined, is simply the substitution of a judge’s personal predilections for law, whatever form that substitution takes. That is, judicial activism exists whenever the judicial officer gives effect to his view of what law ought to be, rather than what law actually is.
This said, permit me to advance for consideration the following view, which I would like to believe would be unexceptionable and consensus, but which I recognize will probably be neither, and indeed is rejected, even by many of my own colleagues on the federal bench. Judicial activism, by whomever it is practiced, is to be condemned. Assuming arguendo, as is often simplistically and misleadingly suggested, that the affinities of the so called "conservative jurists" run toward big business, law enforcement, the prosecutor, or the government in general, then it is no more legitimate for that jurist to infuse into the law his personal affinity for these institutional entities, than it is for the so called "liberal jurist" to infuse into the law what is no less often simplistically and misleadingly suggested is his different affinity for the individual plaintiffs who claim to have been harmed at the hand of these institutional defendants.
The conservative jurist who advocates infusing his personal views into law ought to admit outright that such is open confirmation of the legitimacy of the charge against his jurisprudence, that it is no different from the liberal activism that he criticizes, except in his pursuit of a different set of political objectives. Of course, so also should the liberal jurist be prepared to admit that the introduction of his different subjective dispositions into the same calculus, also to be activism. And it should not matter to either jurist, that his activism is employed in moderation. The conservative and liberal jurist alike should regard activism in moderation as no more defensible than activism in excess, and the attempted defense of such as folly.
Nor should activism be viewed by either jurist as justifiable for the reason that it is employed in pursuit of the particular objects for which he has affinity, whatever those objects be. Indeed, each, the conservative and the liberal jurists, should believe it most important that he restrain himself precisely when the objects of his affinity are before him. He should believe that his activism is not justified by the ends it seeks to secure, any more than another’s activism can be justified by the different ends that it seeks to secure.
There is no such thing as good or justifiable judicial activism. All activism is in defiance of law - law, that is, defined as the politics of the People, not the politics of un-elected, life-tenured federal judges. The conservative jurist, as the liberal jurist, should defend with every ounce of his judicial might, the imperative that the party who comes before him entitled under law to prevail, must prevail, and that neither the plaintiff’s nor the defendant’s likelihood of prevailing should be dependent in any way at all upon the personal predilections of the particular judges assigned to his case, however laudable those predilections might be.
He should not decide for the institutional entity and against the individual, or for the individual against the institutional, because of any affinity for either, but rather only because that decision is required of him by law. Just as he should not decide for, or against, any litigant because of any personal view as to the wisdom or desirability of the particular statute, or other authority, that in that particular case, he’s interpreting and applying.
The conservative jurist and the liberal jurist, equally, should believe that to embrace a jurisprudence that recognizes a role for the purely personal view of the judge and the decision-making process, even one that pledges intelligence and moderation in its performance, and claims virtue as its object, is nothing more than to engage the judicial activist possessed of a different political or social agenda on the latter’s own terms.
Both the conservative and the liberal jurist should believe that this is an engagement that cannot be won by one or the other, and ought not be won by either. For if either jurist so disposed is victorious in such an engagement, then law will have become nothing beyond the wield of raw power by whomever happens at the time to have greater numbers on the federal courts. Listen carefully to this, if to nothing else that I have to say. If, as has been asserted, a judge’s personal dispositions may properly become a consideration in the decision of specific cases before the court; and if, as has been asserted, the liberal jurists’ sympathies most naturally extend to individual plaintiffs, and the conservative jurists’ sympathies most naturally extend to the institutional entities of society; and if the numbers of liberal jurists at the time exceed the numbers of conservative jurists; then plaintiffs, rather than society’s institutional entities, will prevail in the courts.
If, on the other hand, at any given time, the numbers of conservative jurists exceed the numbers of liberal jurists, then the collective entities of society, rather than the individual plaintiffs, will prevail in the nation’s courts. But, whether the result be one or the other, it will be so, not because of law, but in repudiation of law. Live by the sword. Die by the sword.
If one is unwilling to die by the sword he wields himself, then he should accept that which the activist rejects – that law is an institution, separate and apart from politics. And that those charged with the sacred responsibility of its interpretation must forsake their personal politics the moment they put on the judicial robe. For only through the complete forsaking of personal politics will the judicial result reached be the expression, not of the politics of the particular judge, but of the politics of the People, from whom the judge derives his power. Acceptance of this rule of law as so defined, it should go without saying, entails acceptance by the jurist that these principles are as important a restraint upon him, as he argues they ought be upon others.
As a consequence, he should understand, he cannot even the score for what he perceives to be the wrongs of the past, and at the same time remain faithful to these principles by which he is externally bound, internally binds himself, and by which he expects those of different political mind also to be bound. He should accept the limitation that these principles place on his loaned power, if for no other reason than out of the simple conviction that requiter would be a betrayal of both.
I believe that these are the principles to which all jurists, however they are labeled, or label themselves, should adhere, if the law is to be anything different than, if it is to be anything beyond, mere partisan politics. If these simple principles are followed, I believe that raw partisan politics and the complete politicization of the law that it threatens will suffer defeat as it ought, and the rule of law will prevail as it ought. And if at the end, such proves to be the product, then for all its rancor, the debate that we are currently having over the courts and over law itself will have been worth the considerable price it will have exacted.
Thus stated, the fair question arises of how do we first, detect, and then, having detected, purge, judicial activism from the decision-making process? As we open our discussion, let me suggest this, which we can explore in greater detail: At the end of the day, other than conscience, it is only intellectual honesty and intellectual rigor, and the accountability that these render possible, that can restrain a judiciary that serves for life, and at the pleasure of no one. And it is precisely because the intellectual honesty and analytical scrupulousness of conventional jurisprudence, and the resulting accountability, do serve as a bridle upon the courts, that honesty and scrupulousness have been eschewed in many quarters, in favor of the intellectually lazier and jurisprudentially misbegotten enterprise of decision by personal policy preference.
If we were to restore intellectual honesty and analytical rigor to judicial decision-making, as well as to the public dialogue over the courts and over law, I believe we would find that the differences among us are not as great as the current polarizing rhetoric suggests. Indeed, through an honest and good faith dialogue, I suspect we might even bring truce to the destructive political war that is being waged over the courts and stem the further politicization of law, which already must be counted as among this war’s heavy costs.
Luttig is a good judge, and would make a fine choice for the high court. Despite our own personal preferences for elevating Scalia, we would accept Luttig to take the Chief Justice’s seat, as well. It would not be imperative that Scalia ascend, however for his years on the court, we would hope that he would at least be considered. He, like Rehnquist, has an extremely sharp legal mind, and isn’t afraid to go against the rest of the court if he knows he’s right. Thus far, in my own personal readings of the Supreme Court decisions, there is nary a decision I have read written by Scalia that I haven’t agreed with.
Luttig offers us the same thing, only slightly less abrasive. Scalia’s opinions can be the most basic dissertations on the law, or they can be scathing indictments of rogue law from his colleagues. Luttig would be no less opinionated when it comes to admonishing court members for their lack of intelligence when it comes to the workings—the very heart of the interpretations—of the law. In our opinion, the Asylum would support either elevating Scalia, and nominating Judge Luttig to his vacant seat, or appointing Luttig to the new vacancy, directly, on the court right now.
And, Luttig has done one thing that many on the Left are trying to hang Roberts over. Roberts didn’t recuse himself from the Hamdan case. He didn’t have to. Roberts engaged in no extra-jurisprudential reasoning. He stuck to the law, and rendered his decision. Luttig, when learning that a case was coming before the 4th Circuit Court immediately recused himself from the bench for that case. What was the case? A death penalty appeal from the man who murdered his father. Now, how can the Left attack a man like Luttig?
Publius II
posted by Syd And Vaughn | 1:02 PM
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