Hot Monday

Heat in July. Hurricane/Tropical Storm Dennis. The tragedy of London. The launching of Discovery and hopes reborn. Major League Baseball All-Star Game Break time.

Consider: this article (link via the Yahoo’s posting of it) – “Who do Conservatives Want for the High Court?”. They don’t want Alberto Gonzalez because: (a) abortion is the end-all, be-all issue for them and they can’t trust him to be with them on that issue; (b) they can’t trust him to be the strict constructionist of their waking dreams; and (c) they seem to want Christian hegemony to reign (or, at least, they want an end their perceived anti-Christian bias in America – and I do wonder what they mean by “anti-Christian”? Anti-Protestantism, anti-Catholicism, anti-religiosity (which oughtn’t preclude all other religions and maybe the world is too secular – who am I to say?)). And, as noted by the above-noted article’s reporters Bethany Broida and Lily Henning of “Legal Times”:

Social conservatives “need to be careful what they wish for,” says Auburn University political science professor Steven Brown, who studies social conservatives. “They’re going to have to run the gamut from taxes to property rights issues, and someone who is reliable on abortion might be less so on the nitty-gritty of religion in the public square.”

So, imagine: you have a justice who may try to knock out Roe v. Wade; might knock out the death penalty (to be consistent with the life-is-precious concept, assuming he/she doesn’t buy the eye-for-an-eye theory); might even be so humane as to want to kick cruel and unusual punishment in Guantanamo Bay (because life-is-precious and to forgive-is-divine). Thus, so-called social conservatives might still view this justice as too extreme or not extreme enough for them (it’ll just take a couple of years to see that, much as it happened with Souter or Kennedy). To satisfy the so-called social conservatives, it’ll feel like sticking a finger in the wind – but it’s just really, really complicated. Why are we catering to them? I thought judges exist to be independent (the judiary is its own branch of government until the legislature comes up with something to check and balance it, according to the system this country has); the judiciary is not to swear allegiance to a “faction” (to borrow a term from the old Federalist papers).

Ok, so maybe I’m being a little facetious here and maybe my political biases are becoming a little obvious – I just can’t agree with the Right Wingers/Deep Red State folks (even as I try as I may to be open minded about their arguments). But, heck, I found myself agreeing with George F. Will today (having read the NY Post’s printing of the column – I’m linking to the Washington Post’s website for the column, in case anyone registered for that newspaper). As part of his argument for selecting Federal Appellate Judge J. Harvey Wilkinson, Will observes:

Constitutional law is rife with clashing certitudes generated by too-clever theories purporting to illuminate the one valid approach to construing the Constitution. These theories obscure uncertainties inherent in all legal reasoning. This is especially true in construing a written Constitution in light of precedents produced by applying it in political contexts and to controversies unforeseen by its framers. [emphasis added]

Many conservatives are rightly dismayed by exercises of judicial discretion so broad they resemble legislative willfulness not tethered to analyses of the discernible intentions of the Constitution’s framers, or of its text, structure and yield of precedents. Undismayed liberals eagerly blur the distinction between legislative and judicial functions: Having lost much of their power to persuade electoral majorities, liberals seek success through litigation rather than legislation.

Liberals and conservatives, Wilkinson has written, differ about “the place of compassion in the democratic process.” The human condition is prey to myriad misfortunes. “Victims of social circumstances, however, are altogether distinct from victims of another’s violation of a specific legal duty. It is the job of the democratic process to ameliorate the effects of the former. It is the judiciary’s charge to rectify the latter.”

Dismay about abuses of judicial discretion drives some conservatives into a misguided quest for a jurisprudential holy grail — a theory of constitutional reasoning that will virtually expunge discretion from judging. This goal is chimeric.

Construing the Constitution should begin with what the document’s pertinent language meant to those who wrote and ratified it. But construing can rarely end there. Historians continue to deepen our understanding of how varied and occasionally contradictory were the intentions of the framers and ratifiers. History always informs constitutional deliberations; it rarely is dispositive. [….]

Some judges profess a single explanatory theory for construing the Constitution, a doctrine that makes one value — majority rule, or limiting government, or minimizing judges’ discretion — trump all others. Most such judges will flinch from following that doctrine to conclusions inconsistent with either a long line of precedents or the nation’s current sense of justice. But flinching will not save such judges from being portrayed as willing to let severe logic lead the law to conclusions that the nation has decided are unacceptable.

Wilkinson’s conservative sensibility makes him averse to what G.K. Chesterton called “the clean and well-lit prison of one idea.” And Wilkinson’s conservative temperament makes him comfortable with the subtle task of balancing judicial modesty with the judicial responsibility for refereeing, by constitutional principles, the government’s behavior.

And the public’s behavior, too. Majority rule, to which the political branches are subservient, does not trump constitutional law. This provides a central drama of America’s polity — judicial review. It is in tension with democracy, yet is indispensable if the Constitution is to limit government.

In Federalist 78, Alexander Hamilton said that courts have a duty “to declare all acts contrary to the manifest tenor of the Constitution void.” So one of the Constitution’s most distinguished framers thought judges’ discretion must extend to measuring governmental acts against their sense of the document’s “manifest tenor.” The inexpugnable role of judicial discretion demands of judges the virtue Wilkinson calls “modesty.” That is a modest man’s synonym for judiciousness.

[H]e clerked for a family friend, Supreme Court Justice Lewis F. Powell Jr., the embodiment of mainstream conservative jurisprudence. Wilkinson was nominated by President Ronald Reagan to the U.S. Court of Appeals for the 4th Circuit. Concerning the most important and vexing subject of constitutional law — racial equality — Wilkinson wrote a justly praised book, “From Brown to Bakke: The Supreme Court and School Integration, 1954-1978.” In 1987, in a case concerning a “minority set-aside” program for Richmond contractors, he wrote the 4th Circuit’s opinion demonstrating how carefully circumscribed “race-conscience remedies” must be in order to be compatible with the Constitution’s guarantee of equal protection of the laws. In 1989 the Supreme Court endorsed the 4th Circuit’s ruling. The opinion affirming Wilkinson’s reasoning was written by Sandra Day O’Connor.

The nomination of Wilkinson to fill her seat would be a splendidly clarifying act. Any senator’s claim that Wilkinson is an “extremist” would be risible, and itself evidence of extremism.

Will makes a well-crafted argument. I don’t mind if we could get a Powell/O’Connor-like Supreme Court justice. Problem is, I doubt the Right Wingers will accept that (and I can’t be certain about the Left Wing view either, frankly). As I said before, this will make our world that much more complicated.

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