Wednesday, July 27, 2005
For a half-century, the left's key victories were gifts from an interventionist Supreme Court. This promoted alarming misunderstandings of the judiciary and fostered dangerous myths about our country and Constitution, many of which have been displayed since the President nominated Judge Roberts. At issue is the democratic process and the meaning of judicial independence. Less philosophically, liberals long ago abandoned neutrality for result-oriented reasoning.
- "Dislike" or "oppose" ¬= "unconstitutional." Opponents of Roberts claim his DC Circuit opinions demonstrate an "extreme deference to the government" that will "threaten" individual rights, citing Roberts' unanimous opinion in Hedgepeth v. Wash. Metro. Area Transit Auth., 386 F.3d 1148 (D.C. Cir. 2004). Hedgepeth -- the infamous "French fries" case -- held that arresting a 12 year-old girl did not violate her civil rights.
Liberals decry the supposed Roberts-imposed "humiliation" but, as Roberts' ruling itself said (Hedgepeth, slip op. at 1), the case concerned "not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution." Far from favoring humiliation, Roberts' opinion began, "No one is very happy about the events that led to this litigation." That's what judges do, says John Hinderaker, "One basic difference between liberals and conservatives is that conservatives understand that there are any number of ideas that may be stupid, but are not unconstitutional."
- Results, not reasoning. The Constitution says nothing about privacy, abortion, school busing, sex education or marriage, gay or otherwise. Until modern liberals decided:
a) Long-standing constitutional and statutory provisions can be re-interpreted to be more relevant to modern sensibilities;Now, heaven knows; anything goes.
b) Re-interpretation is not limited by the provision's language or intended scope; and
c) Judicial re-interpretation may ignore the people as expressed either directly or by the peoples' elected representatives.
How did we get here? John Adams said Americans created "a government of laws not men." As a result:
meanings -- and justice -- depend on words, not the perceptions or prejudices of the decision maker. This is particularly true where the relevant legal principle derives from the Constitution. The Framers made our Constitution relatively hard to change -- amendments and alterations only through various super-majorities. Relatively immutable Constitutions promote continuity and protect the rights of the minority.No more, says David Mayer:
left-liberals fuel the conservatives' accusation that liberal judicial activism undermines the rule of law and replaces neutral, objective standards of constitutional interpretation with the subjective preferences of individual judges. As former attorney general Edwin Meese said, theirs is a "chameleon jurisprudence, changing color and form in each era."According to John Hawkins, the left's new "living constitution" allows:
power hungry judges at the state and federal level [to make] decisions on a regular basis, based on little more than their own personal biases and that should be left to elected representatives of the people. Then after our robed masters, like kings of old, issue decrees that all of us must live by, they imperiously proclaim their pig's ear of a ruling to be a silk purse of constitutional law.For the left, the omission of privacy from the Constitution is a mere technicality. Liberals, of course, like technicalities that force acquittal of the guilty. But outside the Sixth, Seventh and Eight Amendment, technicalities blocking a "progressive" agenda are routinely resolved by Judicial amendment. That's not what the Founding Fathers intended, says blogger Sandefur:
The fact is, almost all of law is technicalities. The Constitution sets limits on what government does not just by enumerating a set of things that government shouldn't do -- something the Federalist called a "parchment barrier," because it could be so easily overcome -- but mainly by determining how decisions are to be made, and making some things more difficult for government to do as a matter of procedure.Through the liberal looking glass, legal fidelity is a flaw. And of that crime, Judge Roberts plainly is guilty. Hedgepeth is a good example; Slate's Dalia Lithwick faulted Roberts based on the case's outcome as opposed to the role of appellate Judges or the actual text of the law. Demanding judges that uphold "nontextual rights" seems as nutty as imagining a six foot rabbit--but there's little hope liberal lawyers will get committed.
Similar logical non sequiturs lie behind the leftist insistence Justice Roberts would "severely limit the authority of Congress to protect environmental quality as well as the rights and interests of ordinary Americans." That conclusion is based on five paragraph dissent from a rehearing on banc in Rancho Viejo, LLC v. Norton, 334 F.3d 1158 (D.C. Cir. 2003), cert. denied, 124 S. Ct. 2061 (2004), the "arroyo toad" decision. Yet, Roberts nowhere denigrated environmental protections nor signaled his view of the issue. Rather, Roberts was, well, judicious, says Viet Dinh in Slate:
In arguing for reconsideration of the panel's decision against the developer, he did not say that the three judges decided the case wrongly. Rather, he acknowledged that their treatment of the case was consistent with the 1997 precedent of the D.C. Circuit. And note how judicious is his call for reconsideration. His guns are not blazing. His mind is not made up. Rather, his opinion states that the panel decision "seems inconsistent" with the Supreme Court holdings in 1995 and 2000. And he did not say that the Fifth Circuit was right, only that there is a clear conflict.Writing in Tech Central, Lee Harris wonders:
What explains this mystery? How did Americans relinquish the fundamental right of free people to govern themselves without fear of the capricious intervention of an oligarchy whose values are often diametrically the opposite of the values of those over whom they rule? An oligarchy, moreover, that never needs to worry about being tossed out on its ear or overthrown in a revolution; an oligarchy whose supremacy remains unquestioned even by those who are most bitterly opposed to its high-handed and imperious acts.That's a question Senators Schumer, Kennedy and Leahy can't answer. Especially regarding Courts and judges, the left has no principles. Rather, the liberal approach to law has become entirely result oriented.
Leftists don't so much dispute Roberts' reading of the Constitution--they're terrified he reads it at all. This isn't about process, doctrine or reasoning. It's about ends--which apparently justify any means.
- Judges aren't politicians and don't make law. The United States Constitution embodies a federal system of government, with limited and specifically enumerated centralized authority. Ideas not in the Constitutional text are neither enshrined or prohibited, but instead are the provenance of politics, to be settled numerically:
the founding fathers didn't expect voter unanimity on controversial issues. Instead, they created a process to address disagreement--a relatively immutable Constitution, a Congress with limited Federal powers, separation of powers, a list of untouchable rights, and an expectation that state legislatures would reflect the will of their own citizens.Judges interpret, not make, law. So, when judging Judges, rate the reasoning, not the result, says Charles Krauthammer:
The real question is never what judges decide but how they decide it. The Scalia-Thomas argument was not about concern for cancer patients, the utility of medical marijuana or the latitude individuals should have regarding what they ingest.Indeed, the syllabus is narrow and excludes politics:
The question before the Supreme Court was not whether allowing the medicinal use of marijuana was a good policy or a bad policy. The legal question was whether Congress had the authority under the Constitution to regulate something that happened entirely within the boundaries of a given state.By that measure, Roberts excels. Individual rights are spelled out in Constitution, statute and regulation. In Hedgepeth, Roberts followed the law which -- as his own opinion noted (id.) -- quickly was revised "after those responsible endured the sort of publicity reserved for adults who make young girls cry." That's the democratic process--except as seen through liberal-colored glasses.
- One way, only. A half-century ago, the left lost faith in the Constitutional process, preferring a quicker "Hail Mary" to courts:
Democrats never bothered to seek voter or legislative majorities on such maters. They push ever-expanding list of issues too important for debate, instead relying on judicial decrees imposed without regard to the will of the people. Ironically, therefore, the Democratic Party's notion of democracy is anything but democratic.The effect is to turn the judiciary into Congress and unelected judges into politicians.
Even were judges politicians, what's the beef today? The anti-Bush goon squad and thoughtful liberals oppose Roberts because he's conservative. So what? President Clinton nominated the ACLU's general counsel (and board member), the definition of a liberal. But Justice Ginsburg is a solid jurist, was not attacked for being leftist and was confirmed 97-3. If Roberts gets fewer yeas, it will be an outrage.
The real issue is the left's discriminatory, dead-end concept of a living Constitution. Liberals give it life to change with the times. But the course of change is neither fixed nor one-sided. If liberal Judges can add "non textual" provisions, so can conservatives:
How can the left attack the strict scrutiny of Bush's judicial nominees, yet insist on unquestioned adherence as soon as a 5-4 Supreme Court augments the Constitution with yet another plank from the liberal platform de jour? In stark contrast to a women's right to choose, liberals protect the "living" Constitution while gestating, but sign a death certificate of un-changeability once each new "right" is born.Only a liberal could insist Constitutional text is flexible--in one direction. Only a liberal could demand change--but only in a lefty direction. Only a liberal could turn the law into a one-way ratchet--that can't revert.
If law is politics, "just say no" liberals must show why John Roberts should be defeated solely because he's conservative. And if it's not, the anti-Roberts' side needs to demonstrate conservatism is an "extraordinary circumstance."
- Limited government doesn't limit liberals. Liberals particularly scorn judicial reasoning when it might constrain their pet programs. For example, looking at Rancho Viejo, lefties decry Roberts' "crabbed view of Congressional power under the Commerce Clause" predicting Justice Roberts would "stake out hard-line positions that severely limit the authority of the federal government to address national concerns." The heresy was questioning whether a power over interstate commerce covered animals confined to California.
This is unprincipled. For liberals, scope of the clause depending on whether they like the legislation at issue: expansive "to protect environmental quality as well as the rights and interests of ordinary Americans" or even "a last chance for justice" for rape victims; narrow so as to block Federal tax credits for business and non-existent when "religious zealots" seek to save a life, particularly in Florida, because states right have "almost exclusively been invoked by conservative or reactionary elements in support of . . either rich Southern white people who don’t want to have to pay taxes or people who want to treat other people like crap."1
The argument is nonsense, not law, as Ann Althouse says:
From a liberal perspective, one might want to think: I support the enforcement of federalism limits when federalism is really a stand-in for individual rights, and I support strong federal government power when the federal policy in question is really a stand-in for individual rights. But it is rather hard to translate that instinct into sound constitutional law.After treating the Constitution like an accordian,2 Democrats are in no position to demonize Judge Roberts' "arroyo toad" reasoning, sometimes.
- The Court Isn't a "Bantustan." Already, lefties like Risa Goluboff are baying about diversity:
[I]f Roberts is confirmed, there will be a loss of diversity on the Court. Perhaps Bush is suggesting that we as a nation have come so far toward gender equality that a woman need not replace the first female justice of the Supreme Court. Or perhaps he doesn’t care about diversity and gender equality. Either way, the gender and ethnic identity of a woman or minority nominee would have been an issue in the confirmation process, and the same should be true for Roberts. Although no one has ever thought the Court representative of the American populace, one woman out of nine is surely a gross underrepresentation.Goluboff was over-confident: some demand proportional representation on the court, such as Sally Swift:
Americans--all Americans--must depend on the United States Supreme Court to interpret and uphold the US Constitution, and to create the Laws of the Land for all of us. All of us. Women, African Americans, Hispanics, Gays, people of all colors, creeds, cultures, religions, beliefs. Our lives, our liberties, our futures, our children's futures have been too long in the hands of a bunch of White Guys with White Guy ideologies and attitudes. Their interpretations of the Law cannot possibly reflect or protect the needs and lifestyles and thoughts and expectations of all Americans, without reasonable representation among them of all Americans on the Court.This is factually wrong, unconstitutional and noxious. Initially, neither politics nor group characteristics necessarily generate any particular judicial approach, as Ann Althouse observed, "Do you really think the liberal outcomes are produced only by liberal political leanings? I notice that the Justices who disappoint the Presidents who chose them were -- in recent times -- all appointed by conservatives." Even Justice O'Connor was too manly for Slate's Lithwick, who complained in a NY Times Op-Ed:
But when I question--reasonably--if there isn't a woman or minority out there somewhere who's at least as qualified as Roberts to better serve our Entire citizenry (which, by the way, Justice O'Connor also finds disappointing), Carl goes a bit over the top, accusing me of an opinion "both unconstitutional and noxious."
We all know by now that "All Men Are Created Equal" doesn't apply simply to White Men any more. And the highest Court in the land should reflect that.
How could someone who blew open doors for generations of women after her show so little empathy to female victims of violence in the 2000 case of United States v. Morrison, for instance, where she joined with the court's conservatives to invalidate the Violence Against Women Act, or to teenagers facing the death penalty in Roper v. Simmons last fall.Indeed, this idea can be rebutted through a single question: "Is Justice Thomas "representative" of his race?"
Swift's suggestion would trash the Constitution. In the context of the 15th Amendment, the Supreme Court (Rice v. Cayetano, from 2000) called the concept a "demeaning premise that citizens of a particular race are somehow more qualified than others to vote on certain matters." More broadly, Swift's approach is antithetical to America itself: if viewpoints can be reflected only by like persons, our representative government, relying on districts, not race and gender, also must be scrapped. And since individual citizens will differ, often subtly, Swift's recommendation requires replacing a Congress of 535 with an unworkable legislature of 270 million.
The concept is offensive, according to Heather MacDonald in NRO:
In other words, it is the sympathetic identity between a judge and an alleged victim that compels constitutional decisions, not anything having to do with the Constitution itself. This argument would . . . reduc[e] the law as it does to a question of tribal loyalty. . . [Such reasoning] explicitly rejects the realm of reason.Americans don't vote by tribe--which is why questions about Roberts' faith (Catholic) are noxious. And Swift's approach wouldn't "de-politicize" the confirmation process: Even a segregated Court must still be chosen by the President and confirmed by the Senate.
Roberts can't be rejected simply over skin-tone or external genitalia.
- Questions about future reasoning compromise judicial independence. Liberal special interests already demand the Spanish Inquisition; NCJW, a liberal Jewish women's lobby,
calls upon the Senate to fully examine Judge Roberts' dedication to constitutional protections of the right to privacy, separation of religion and state, and other fundamental freedoms. The nation has a right to expect that confirmation of the next person to fill a seat on the Supreme Court will be contingent on a demonstrated commitment to protecting the rights and freedoms of every American and a devotion to the bedrock principle of an independent judiciary.It wasn't always so: As Justice Ruth Bader Ginsburg said during her 1993 confirmation hearings, "A judge sworn to decide impartially can offer no forecasts, no hints, for that would show not only disregard for the specifics of the particular case, it would display disdain for the entire judicial process." Senator Biden defended her answer:
the public is best served by questions that initiate a dialog with the nominee, not about how she will decide any specific case that may come before her, but about the spirit and the method she will bring to the task of judging. There is a real difference … between questions that focus on specific results or outcomes, the answers to which would risk compromising a nominee’s independence and impartiality, and questions on judicial methods and philosophy. The former can undermine the dispassionate and unprejudiced judgment we expect the nominee to exercise as a Justice. But the latter are essential and contribute critically to our public dialog.Roberts deserves no less, but won't get it.
The whole approach is dangerous, says Ramesh Ponnuru, in the current National Review:
allowing such questions, and expecting nominees to give answers to them, would cause confirmation hearings to degenerate into campaigns to get nominees to follow particular party lines. A nominee who pledged always to vote for pro-lifers, or always to vote for racial preferences, to get confirmed would be undermining the rule of law and the impartiality of the judiciary.This should horrify the left. If confirmation is conditioned on the political agenda of the Senate, nominees will tailor their views to that body's majority. But, as left and right agree, the Bill of Rights prevents the tyranny of the majority in the circumstances set forth in the text. If future Justices instead slant their jurisprudence to satisfy 51 Senators, Ponnuru warns, "the courts will become a servant of legislative majorities rather than a check on them." Thus, any "litmus test" abortion, for example,3 would hurt the very Americans it aims to protect.
If you don't like public-transit policy on French fries, elect new councilors who'll change it. That's how free societies function. . .Senate confirmation is the wrong venue for changing judicial politics. That's for the second Tuesday in November. And Americans have three and a half years to prepare.
The Dems prefer to leave it to the Divine Right of Judges. You might too if you believed in gay marriage and partial-birth abortion, but, simply as a matter of practical politics, it's disastrous for the party.
MaxedOutMama agrees: "Those who push the idea of a living constitution that can mean whatever the conscience of an individual judge thinks it ought to mean have inadvertently created a situation in which conservatism could now sweep the day if it chose to."
Sally Swift isn't:
If it were up to Senator Rick Santorum, America would remain firmly mired in the 17th Century to achieve his goal that the Supreme Court ignore the monumental changes in lives and lifestyles and civil liberties and freedoms in order to return to its "true function: interpreting the law--not creating it." Perhaps Mr. Santorum would like some slaves to help the stay-at-home-wife he's so proud of -- since he's never there to help her himself.Sally don't know much about history: slavery was stopped by Constitutional Amendment (the 13th, 14th and 15th), not by inventing text.
The Constitution doesn't enshrine any particular politics, left or right. The rule of law -- what keeps the Anglosphere free -- depends on prohibiting arbitrary and capricious decision making unsupported by codified language. Though she says she's "praying for. . .a continuation of reason and compromise that's not about personal agendas," her approach deploys her personal agenda to demolish reason.
Sally favors the unbounded authority of supposed wise old women who know what's best--and can't spot the tyranny reflected in her bathroom mirror.
More x 3:
Jonah Goldberg in NRO:
[T]he notion that there is a single, authentic black perspective strikes me as fundamentally racist in its essentialism. And the idea that women adhere to a female logic unique to them strikes me as by definition sexist. But the Left doesn't care, because this perspective is indispensable for attacking "inauthentic" blacks or other supposed traitors.More x 4:
Interesting essay at Villainous Company:
Unfortunately we exist in an Age when respect for rules and hierarchy is at a low ebb. Everyone wants to be in charge and no one wants to be a team player. But some sense of structure is absolutely necessary in an organization as large and complex as the federal government. Even a body as small as the Supreme Court will not function well if some of the members believe they have somehow been given a charter that supercedes the original instructions laid out for them at the time they accepted their appointment. And it is a measure of our ignorance and how dysfunctional our society has become that those who argue for judicial constraint are being cast as extremists who threaten the future of democracy as we know it._______________
1 Liberal blogger Ogged rejects acknowledging Constitutional limits on Federal power because it "entailed leaving too many people behind (eg women in Alabama who want an abortion, blacks in racist counties who want to vote, etc.)."
2 Remember Gonzalas v. Raich, upholding the Federal Government's power under the Commerce Clause to prohibit medical marijuana? Well, the ACLU and The Nation were horrified, though both support Federal criminal penalties for polluters. The WaPo, worried about far-reaching Federal environmental laws, praised Raich, even mentioning the arroyo toad case.
3 Employed by both Massachusetts Senators, Senior and Junior, Senator Schumer and, oh yeah, President Clinton.
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Thanks for the links and trackback. I'm glad I'm not the only blogger using footnotes. (But we're sick and need treatment for it, probably.)
I think three footnotes are about the minimum. In my professional writing, I prefer at least four per page.
Great posts on Lithwick btw.