Jewish World Review July 25, 2005/ 18 Tammuz,
In the tradition of Justice Holmes
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
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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