After two weeks in Boise, it's good to be back. For those interested in what Prof. Blanchard and I were up to, go here and more specifically here. I must say, though, spending the two weeks with excellent scholars discussing the nation's founding and then the origins of the Civil War, it's tough to lower one's sights back to the very important question of whether John Thune and Tom Daschle are poopy heads or jerk faces. So let's ignore that and turn to the Supreme Court vacancy.
The fact that Justice O'Connor was no conservative is attested by the fact that she is being praised by lefties like E.J. Dionne and Charles Ogletree. Everything wrong with the left on this subject is summed up in a couple statements. The first is by Mr. Dionne:
That's why, to liberals, O'Connor now looks so good. She was sometimes
wrong from their point of view, but she was not always wrong and she
was not predictable. She was not a pioneer looking for some lost
Constitution and she was not trying to make history by starting a new
era of one sort or another.
This "lost Constitution" of which Mr. Dionne speaks is the a constitution that has any meaning beyond one made up by judges. Dionne, like most on the left, is looking for a "hip" Constitution that changes with the times. This is often referred to as a "living Constitution." The problem with O'Connor is just the thing for which many on the left are now praising her. Justice O'Connor was indeed a pragmatist on the bench. But that was not her job. One is not on the Court to make rulings that will be politically palatable, but to judge the law. O'Connor consistently mangled the language of the Constitution in the name of finding some imagined middle ground. Can anyone honestly make a textual defense of that legal abomination "undue burden" that sprang from O'Connor's pen in Planned Parenthood v. Casey? Justice O'Connor once served in the Arizona legislature. The problem is that as a judge she never stopped acting like a legislator. The art of the legislator is the art of compromise; the art of the judge is, well, judgment. O'Connor was the former, not the latter.
The second statement is this from Ralph Neas:
"This is one of those moments in American history," said Ralph G. Neas,
president of the liberal People for the American Way. "No matter what
side you're on, everything you've believed in, everything you've cared
about, everything you've fought for is at stake. It's such a closely
divided court."
The fact that some people think that the Supreme Court is the ultimate defender of "everything you've believed in, everything you've cared about" shows the abuse of judicial power that conservatives despise. The Court is not the institution to settle our most important debates. To bring this contentious questions such as abortion, marriage, public morality to the Court and to rely on unelected activist judges to settle them stands in direct contradiction to the intentions of the Founders. I quote Mr. Hamilton from Federalist #78:
Whoever attentively considers the different departments of power
must perceive, that, in a government in which they are separated
from each other, the judiciary, from the nature of its functions,
will always be the least dangerous to the political rights of the
Constitution; because it will be least in a capacity to annoy or
injure them.
Hamilton continues:
To avoid an arbitrary discretion in the courts, it is
indispensable that they should be bound down by strict rules and
precedents, which serve to define and point out their duty in every
particular case that comes before them
Hamilton says that the judiciary is only dangerous if wedded with the powers of one of the other branches, such as if the Court became the super-legislature that it is today. I hope that President Bush nominates a strong believer in judicial restraint who decides based on the Constitution's text, not based on politics. I suggest Judge Michael McConnell. When nominated for the federal courts a couple years ago McConnell was unanimously rated as well qualified by the ABA and earned the support of dozens of liberal legal scholars who, while disagreeing with McConnell in many matters, praised his fairness and seriousness. A dark horse? Idaho Senator Mike Crapo. While spending most of his adult life as a politician, Crapo graduated first in his class from Harvard Law School. Let's not forget that many member of the Warren Court, including Chief Justice Warren himself, were politicians, not experienced jurists.
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