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Jewish World Review July 25, 2005/ 18 Tammuz, 5765

Suzanne Fields

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In the tradition of Justice Holmes


http://www.NewsAndOpinion.com | In the rush to judgment of John G. Roberts Jr., the president's nominee to the Supreme Court, everybody's looking for the angle, to determine where he does or doesn't represent a position on this, that and the whatever. Pundits and politicians, from carefully nurtured ideological perspectives, search for clairvoyance, as if a homemade crystal ball will tell them where he will come down on cases.

Such magic and wizardry is fine in fiction, as young Master Harry Potter could no doubt tell you, but crystal balls are excruciatingly unreliable for determining how justices will apply the Constitution to specific cases. You could conduct a sťance with Dwight D. Eisenhower to see what he has told Earl Warren in paradise, or ask John F. Kennedy whether Whizzer White lived up to his expectations.

George W. Bush, still dealing with his defeated critics' accusation that he's a dim bulb in the Washington firmament, has shown himself to be considerably brighter than the preening pundits who confidently told us he would nominate someone else. He has put his own expectations where his mouth is, choosing a man of character, competence and determination who is not likely — "likely" being the operative word — to legislate from the bench. In an age of identity politics that divides the country on issues of race, "gender" and ethnicity, the president ignored the parochialists to nominate (gasp) a white man, the generic politically incorrect creature that in faculty-lounge lore is second only to the dead white male as irredeemably undesirable. (A dead white man was not available.)

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He chose a Catholic who may oppose abortion personally but who promises to examine the issue in relation to the Constitution. Many who support a woman's right to an abortion acknowledge that the way an abortion right was discovered two centuries after the Constitution was written was nevertheless bad law. The lack of a long paper trail requires friends and critics alike to study his remarks on behalf of his various clients for indications of how he might rule as a justice of the high court. Not necessarily any more reliable than a crystal ball.

No one can reasonably accuse the president of pandering to Hispanics or women to expand his political base or appease potential critics. The president describes his nominee as a judge who will "strictly apply the Constitution and laws." This criterion was once a given. When Alexis de Tocqueville visited America in 1831-32, he reckoned the American judiciary as a conservative force, albeit with political power. "An American judge, armed with the right to declare laws unconstitutional, is constantly intervening in political affairs," he wrote. "He cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and remain in harmony with themselves."

Such a judicial temperament has been in steep decline as the standard for modern judges. In recent memory, ideologues always dominate the debate. Rather than consider the intellectual argument over the way the Supreme Court arrives at its decisions, the debate wanders to speculation about how a certain justice might rule on hot-button issues. Specific cases, however, ought not to be ruled by ideology; the president is correct, the only standard ought to be that the Constitution be strictly interpreted. Otherwise, we might as well program a computer to dole out decisions based on the size of the various special interests and their voting strengths.

Since the 1960s, the Supreme Court has done what legislators have been too timid to do. This has pleased liberals, who can't win national elections but who dominate the law schools that produce the lawyers who become the judges. This naturally undercuts how a democracy is supposed to work. In analyzing the idea of a "Living Constitution" as opposed to a written one, Myron Magnet, a scholar with the Manhattan Institute, exposes the court as increasingly seeking goals and solutions that ignore the democratic process, eschewing text and precedent. "To the extent the judges put themselves in the business of dispensing solutions to knotty social problems and providing for the continual reform of society on lines envisioned by the cultural revolution, they were acting not like a judiciary but like a government," he writes in "The Dream and the Nightmare." This pleases "progressives," but not small-d democrats: "In a self-governing democracy popularly elected officials, not unelected jurists with lifetime tenure, make laws and set social policy."


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Justice Oliver Wendell Holmes, who showed great deference to the legislative process if not necessarily legislative judgment, put it bluntly: "The people have a right to go to hell their own way." I don't have a crystal ball, but like George W. Bush, I'm betting that Judge Roberts agrees with Justice Holmes.


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© 2005, Suzanne Fields, Creators Syndicate