Monday, October 31, 2005

Reformation Day

Do you know what October 31st is? Right. Reformation Day. On this day in 1517 (big anniversary in 12 years--mark your calendars) Martin Luther, upset by corruption in the Catholic (meaning "universal") church, nailed 95 theses to the door of the cathedral in Wittenberg, Germany. Originally intended merely for debate among his priestly brothers, a copy found its way into the hands of a man named Gutenberg, and soon all of Europe was engulfed in the flames of controversy. Thus began the Protestant Reformation, one of the greatest events in history.

But Luther's integrity sparked something else: The Great Reformation of the Catholic Church. Whatever you may think of that body, it is certainly not so dogged by corruption as it was 500 years ago. In response to the Protestant Reformation and the departure of the faithful to other churches, Rome began to return somewhat to the church's founding documents (scripture), and rejected at least the worst of its human traditions (like the selling of indulgences, forgiveness you could buy throughout October, allowing you a hedonistic All Hallow's Eve, without fear of eternal damnation....) Ironically, Luther, who eventually married a nun and moved on, never intended to leave the Catholic church.

And what interests me for the purposes of this website is the Reformation of the Catholic church. The American Government faces various heresies today, but I would never suggest abandoning it. I would love to see a Great Reformation, however. We can eradicate some of the wrong views that have crept in, and return to our roots, our founding documents. And while I don't believe anything we face is as corrupt as the selling of indulgences or the Inquisition, there is a tremendous danger in the allegedly "modern" views that would tear the Constitution loose from its moorings and set it adrift on a relativist sea. That is, we face great threats from those who argue it is a "living" document--because they mean it can change with the times, supporting law the founders not only never intended, but would have rejected altogether if given the chance. Such a view leaves only the Court to determine the law of the land, and what the Constitution may say becomes all but irrelevant. Then we are no longer a democracy, practicing majority rule. Suddenly we are ruled by an oligarchy of nine judges appointed for life. Something tells me that arrangement breeds corruption.

Here's to Luther (not perfect, I know) and Reformation Day. May our nation be blessed with its own Great Reformation.

Sunday, October 30, 2005


Do you think about federalism much? Or do you just think of the federal government: the big, bloated sow swallowing so much of every paycheck, rolling in its own filth, and . . . well, I'm no fan of the income tax, but hey, the federal government takes care of us, right? They built the interstate system, they provide for the common defense, they address diplomacy. And the Constitution designates specific duties to the federal government. Article I, Section 8 provides quite a list. Here's a sampling:

The Congress shall have the Power To lay and collect Taxes, . . . to pay the Debts and provide for the common Defence and general Welfare of the United States; . . .
To borrow Money on credit of the United States;
To regulate Commerce with foreign Nations, . . .
To coin Money . . .
To establish Post Offices and post Roads;
To declare War, . . .
To provide and maintain a Navy; . . .

But what about providing a free public education? Or laws against murder, rape, and robbery? What about your fundamental right to sue all doctors and rich people? But I know you're way ahead of me. All that stuff is left to the states. These and so much of the rest of life were placed by the Founders in that large group of governmental powers known as the Reserved Powers.

Like all rights spelled out in the first ten amendments (the Bill of Rights), this check on federal power was understood from the text of the Constitution. That is, some founders argued no Bill of Rights was necessary because everything in those ten statements was clearly the intent of the Constitution anyway. In other words, everyone present knew that if it was not written down as a power specifically designated to the federal government, then the federal government had no such power. But the Bill of Rights nevertheless was ratified and appended to the Constitution in 1791. And the right of the States to govern themselves was spelled out in the tenth Amendment.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Today the tenth amendment is the foundation, the beginning of federalism, federalism being the idea that ours is a nation of free and independent states, united for various federal purposes, but otherwise distinct and free to govern ourselves as each state sees fit.

And is that how we see it? Is that how most Americans see themselves or their states? I don't have poll numbers, but I'd bet not. Today our conception of America is something much more homogenous than that, as if we were one big family. But still, the name United States is plural, you know? We are not exactly one and have never claimed to be. One of few Latin phrases I can translate:

E Pluribus Unum: Out of Many, One.

We are one, but we are many. Yet aside from the growing (and unhealthy) balkanization of our campuses and culture (black students for peace, hispanics for success, Chinese Student Union, Native American Club, Vietnamese Student Center, African Studies, Womens' Studies, Chicano Studies, ad infinitum), most of us see America as one big melting pot, and though some have said "all politics is local" most would argue "all interesting politics is national, and the local stuff is tedious."

Oh, how far we have strayed from the ideals of the framers. Throughout the Colonial period, each colony enjoyed tremendous freedom (at least from each other, if not from King George). As a result, they were extremely anxious about giving that up by joining some sort of large American nation. But because all the colonists shared the same reservations, they were able to agree to a sort of tenuous Republic, modeled in part (I believe) on Greek ideas of various city-states, each with self-government, but the ability to come together for the common good. Such relationships are older than history. But this idea of United States was different. The states are obviously bound together; this is a nation, no doubt about that. But this was originally a nation that provided for a tremendous amount of local control. Jefferson is famous for his insistence on States' rights. Most have heard that the Civil War was at least partly concerned with states' rights.

But what does all this have to do with Judges?

To put it bluntly, many have found ways to ignore the Tenth Amendment. On so many issues our federal government now intrudes in areas the states once held sacred. This has probably gone on throughout our history, but it really took off while FDR was president. Admittedly, we were coming out of a depression and fighting the second of two huge wars in 20 years. People were willing to unite behind the president and the United States. That was the right thing to do. But FDR, you may remember, was famous for his court-packing scheme. He knew the Judicial limits on his own power, and those darn judges weren't dying fast enough. So FDR tried to enlarge the Court by three seats, which would be his to fill, of course. It didn't happen. But he made inroads nevertheless, appointing men to fill eight of the nine seats during his four terms as President.

Did you hear Governor Rick Perry (or was it Mississippi's Haley Barbour?) who recently testified in FEMA hearings that he did not want the federal government to become the first-responders in cases of natural disasters. The locals know the place, they know the system, the roads, the people, the needs. Of course they should be the first on the scene and they should call the shots.

But does the debate strike you as odd? Years ago, there would have been no debate. For years, states that now climb all over each other racing to suckle up to the federal teat, turned down federal handouts the same way the men rejected charity if it was offered to their families by the neighbors. States were once too proud for handouts and fought vigorously to prevent any federal intrusions into areas reserved to the states. Jimmy Carter created the Education Department, a federal sinkhole that may have done some good, but is the money used efficiently?

My point here, and sorry if I've strayed, is that the Court and its judges must remember and respect federalism. That probably won't happen if the people don't demand it. And we don't. But it matters. One of the biggest problems with Roe v. Wade, and decisions like it, is that it was an abuse of federalism. A power reserved to the states, the power to regulate abortion, was removed by the federal court.

Here are some more thoughts on Federalism from Robert Bork's book, referenced elsewhere.

"Today [federalism] is usually thought passe, quaint, or even tyrannical, this last because federalism, rephrased as 'states' rights,' permitted some states to legislate racial discrimination."

"But federalism also had an important benign aspect, the protection of individual liberty."

"Federalism is, moreover, the only constitutional protection of liberty that is neutral." (Because it is not related to specific subjects, like speech, assembly, religion, etc.) "In this sense, federalism is the constitutional guarantee most protective of the individual's freedom to make his own choices."

Remember, if you don't like the way it is where you are, you have 49 other states from which to choose. Environmental regulations choking your business? Move. I suggest Texas. Don't like that new state income tax? Move. Again, consider Texas. Tired of dropping your guns at the Potomac bridge? Get out of the beltway (probably the least likely to benefit from federalism) and move to Virginia. Want to smoke in public? Or to drive a gas-guzzler? Or to cut the timber on your own land? Federalism still provides a lot of options. But as judges neglect it, crushing states' rights under their federal jackboots, the states will become more and more alike, all burdened with more and more laws, many of them bad.

Federalism matters. And maybe all this gives you some idea about the Federalist Society. I'm a member of that august organization, but I honestly think the name is related more to the federalist papers. But you can check their website for more info.

By the way, kudos to Jennifer DiMaggio for the topic. We were talking about Roe and got onto federalism. She is headed to D.C. to work for International Christian Concern, where she will specialize in efforts to aid the persecuted church in Sudan. You can reach her at (Or is it ''). Anyway, Sudan is another topic dear to my heart.

Friday, October 28, 2005

Baseball, Sam Houston, and Those Judges...

Driving (again) from Tyler to Houston, I passed the ten-story statue of Sam Houston. Because I'd been nodding off, it was a good time to stop. For the first time I got there during the day. (Have you been there?) The statue's cool, but this time I made it to the gift shop. They were closing, so I walked straight in and asked, "Do you have anything with that stuff from the plaque on it?" She pointed me to a postcard. I'd have spent more. I'd like it on a tee-shirt, a coffee cup, or a plaque of my own. But all they had was the postcard. I want to share with you the quote the artist (or the Masonic Lodge behind the statue) chose to put on the brass plaque at the statue's base.

"The great misfortune is that a notion obtains with those in power, that the world, or the people require more governing than is necessary. To govern too well is a great science, but no country is ever improved by too much governing . . . most men think when they are elevated to position, that it requires an effort to discharge their duties, and they leave common sense out of the question."

Sam Houston.

Now for some baseball. With the recent baseball overdose here in the Bayou City, you'll understand this analogy. John Roberts said recently that he sees his role like that of an umpire, calling balls and strikes. But Roberts didn't elaborate--so I will. The umpire-judge doesn't make rules. And he doesn't play the game. The judge calls balls and strikes. What he does not do is redesign the strike zone. That legislative decision was made elsewhere. Another body made the rules. The umpire merely applies them. A strike is above the knees, below the shoulders, and above the plate. Anything else is a ball. Sure, the umpire is imperfect. But he knows his role: to understand the law as it comes down to him and apply it to everything the pitcher throws at him.

What is an activist judge? He's the umpire who makes up a new strike zone.

And activist judges are judges who step outside their proper role as judges. They are like the politicians who enter office seeking new ways to assert and grow their own power and authority. Or like the ones who think only of creating a legacy. In other words, these people, both judges and politicians, are the ones Sam Houston complained of: "they think when they are elevated to position, that it requires an effort to discharge their duties, and they leave common sense out of the question."

Our system requires a Separation of Powers. And on rare occasions, the Executive Branch shares a legislative role, and the Legislative Branch shares an executive role. For example, the Executive takes on a legislative role when he uses his veto power (did you know Bush has never used that power?). And the legislature takes on an executive role when it is required to ratify treaties entered by the president with a 2/3 vote. But at no time does the Judicial Branch (at least as contemplated by the Constitution) share either. This third branch of our government is entirely different from the first two. Can you see why? The first two are made up entirely of politicians. They look at problems, search their hearts, talk to voters, and sponsor and draft laws. But the courts are entirely different. They (usually) don't run for office, they do not respond to voters, they do not listen to anyone's heart, and they do not create new law (other than "interstitially"). Moreover, the Founders described the third branch, the Judicial Branch, as being by far, the weakest of the three.

. . . But after an exhaustive search, I can't find the quote on that (!). Robert Bork put it this way: "There is no faintest hint in the Constitution, however, that the judiciary shares any of the legislative or executive power. The intended function of the federal courts is to apply the law as it comes to them from the hands of others."

The Tempting of America: the Political Seduction of the Law, 1990. 4.

Thursday, October 27, 2005

Harriet Miers Withdraws

Now here's a relevant current event. Last night Miers told the President she was pulling her name from consideration. Democrats cry out that the 'radical right wing' of the Republican party did this. Rush Limbaugh (whom they named specifically) says he had nothing to do with it. But many conservatives, while chafing at the 'radical' label, do not pretend to be unhappy. Yet they like Miers personally. They protest only that they were concerned about her commitment to a proper judicial philosophy. And she has ridden the fence on a number of issues over the years.

Why did Bush's base--not a radical fringe--fail to support him on Miers? Because they saw her nomination as a squandered opportunity. They voted for him so he could put solid people on the bench, people who were clearly committed to a certain philosophy of judging, not to certain litmus test-outcomes. That is, it's not just about Roe v. Wade. It's about putting the Court back into its proper perspective, bringing a halt to the Court's recent tendency to overstep its power and become a legislative body. It's about returning to a commitment to the Constitution, not as some allegedly "living document" (liberal code for a document that adapts and changes), but as a brilliant philosophical statement onthe nature of man (fallen and corruptible) and the rights and responsibilities of citizens living in this free Republic. Such brilliance need not change. Our founding documents are the work of genius, many believe genius inspired by God. And the Constitution is one of history's greatest works on the nature of man and his rights and responsibilities. It's done, you know? Like Beethoven's Ninth or DaVinci's Mona Lisa, or Michaelangelo's David, or the Statue of Liberty. Or the Ten Commandments, Hamlet, Genesis, The Sermon on the Mount. Which of these great works is ever described as "living"? They are among mankind's greatest achievements, but no one expects them to adapt. Neither should the Constitution. The men who drafted and ratified it understood its words. Their understanding--the original understanding--is the only proper interpretation.

We need a Justice who is committed to this perspective.

Tuesday, October 25, 2005

So What About Harriet Miers?

I've been avoiding the subject of Ms. Miers in an effort to define terms--and I won't devote much to her just yet. Hearings don't begin for another two weeks. I will say, things might have been done differently. Most of what we know about her is that she is something of an unknown. That is unfortunate, when there are so many solid people with both outstanding resumes, demonstrated scholarship, and a known commitment to a traditional judicial philosophy.

My hunch has been that the president was ducking a fight when he chose Miers. She was a known supporter of Dukakis and at one time supposedly gave money to pro-choice causes. (Or this may all be rumor. My sources are not good.) Now I hear people assuming she experienced a radical conversion to Christianity and changed her view on abortion and other things. I don't know what the truth is. And I don't get a vote in this anyway--since she's not a politician.

But I don't understand why Bush didn't pick a solid candidate that his supporters could rally around. The GOP has the majority, yet we seem to be trying to placate the ravenous dogs by throwing them a Dukakis supporter. Then James Dobson gets on the air and implies Miers is just who we want on the bench. But what does that mean? That she's pro-life, no doubt. But I'm sorry, but I'm just not interested in getting that single vote on a single issue--even if it is the biggest issue of the last fifty years. We should take the long view and appoint someone who is schooled in conservative scholarship on dozens and dozens of issues. We need excellence and a demonstrated judicial acumen. I'm not saying Miers lacks either--only that I have no idea. It's the president's choice, and Bush has always been good at reading people. Maybe she's the best choice. I hope so.

Saturday, October 22, 2005

What Does it Mean to Follow the Law?

While in a Beaumont, Texas courtroom I recently overheard an interesting discussion. It seems a small child had somehow wandered out of his elementary school and then been found outside, wandering a busy street. The parents sued the district and their case was now concluded. (I assume they lost.) Next, they filed a second lawsuit against the superintendent of schools, suing him personally for the negligence that led to the child's harm. (What that harm was, I do not know. Probably some alleged emotional distress.) This case presented serious problems, but the plaintiff's attorney was undaunted, possibly because this was, after all, Beaumont--a plaintiff's venue if there ever was one. The exchange was interesting:

Defense counsel: Your honor, the [school-law] statute specifically addresses negligence claims against the school district. If I might direct the Court to Section 42, as noted in our brief at page 8, the State of Texas has specifically stated that negligence claims against the superintendent of schools cannot be brought based on allegedly negligent actions of district employees.

Judge to Plaintiff's counsel: Did you address this statute in your brief?

Plaintiff's Counsel: Well, your honor, . . . I've read the statute. But no, I did not specifically address that point in my brief. But your honor, I would simply urge the Court to consider: this is a case of negligence, your honor. I mean, the child got out of the school and was walking up and down on College Avenue, a major thoroughfare in this city. Now your honor, that sort of thing does not happen--it cannot happen--without negligence. This is bold, flat-out negligence of the worst kind. And it is the superintendent's responsibility. I mean, he was in charge. He was the man. And he let this little boy wander out on the street. I mean, these parents entrusted their son to the school, to the superintendent....

Judge: But what about the statute? Does it not expressly abrogate this suit? Doesn't the statute say you can't do this?

Plaintiff's counsel: Well, your honor. This is a case--Your honor, I am simply asking that the Court would, in its discretion, just consider the negligence in this case. I mean, this man....

I was dumbstruck. Maybe I am naive. But how could he stand there and talk about discretion? How could any self-respecting attorney stare in the face of a statute that says "You can't do ABC" and ask the judge to let him do ABC? In law school, one of my professors had a question: Could you make that argument without a bag over your face? I couldn't. But I know many who could--and some who would argue anything less was not serving their clients. It's as if the law means nothing. Who cares what it says, as long as you can give the court a way to read it in your favor?

And that, my friends, is precisely what is wrong with the law today. No--not with the law. That is what is wrong with legal practice today.

Words mean something, right? Even legal documents. Especially legal documents. They mean what they say and nothing more or less. Sure, there is room for interpretation and application. That is the judges' role. But there is not room for fiction, for creative writing, for arguing for results exactly the opposite of what is written in the text. (Even though a growing body of caselaw can make it seem otherwise.)

Joseph Story, both a professor and a Supreme Court justice, wrote "A constitution of government is addressed to the common sense of the people; and never was designed for trials of logical skill, or visionary speculation."

Are Judges from BOTH parties "working vigorously to change the role of the judge?"

This is a reference to the description of this blog. And the answer is 'YES.' Judges from both parties, judges from all over the map, are working--some deliberately and consciously, and others ignorantly--to change the role of the judge. That is, every judge who fails to understand the bounds of his role will constantly overstep those bounds. If you can't see the curb, you'll step out into the street. Few will disagree with me when I say that law schools--like so much of academia--are generally quite liberal. That's axiomatic. And how does that affect a judge? Simply in that he will be exposed to very little judicial philosophy or anything else remotely theoretical after he graduates. Discussions of the role of judge happen in two places, law schools and courtrooms (by the losing/appealing party). But a meaningful inquiry about these boundaries is rare. Liberal professors do not believe that the judge is limited to applying the law and interpreting texts. They flatly disagree. And lawyers, both liberal and conservative, are not paid to consider such things. In fact, why should they? Often the only way they can win for their clients is by asking a judge to ignore the law. I hear it all the time: "Your honor, I'm just asking you to consider, in the court's discretion...." In other words, gimme a break. Such appeals often work. So lawyers aren't interested in boundaries. They are interested in practical tools to win cases.

(Of course, you could argue that these boundaries within which a judge operates are winning tools--if you're on the other side. But it's not that simple. Imagine the argument: "Your honor, with all due respect, your honor--now I don't mean to offend--but what the plaintiff argues is beyond the scope of this Court. The only questions facing the Court today are the application of the statute. The Court simply does not have discretion...." You can see how hard it is to win such a point--to tell a judge to watch himself before he gets too big for his britches. But yes, it can be done.)

But back to the law schools. They talk about judicial philosophy and jurisprudence, but not as much as you might think. And they do not talk about the traditional role of a judge. Their graduates won't hear much about it in their practice, and it is the rare lawclerk or staff attorney that will remind him when he is overstepping his bounds. And then there are the obvious questions about the qualifications of some judges. In many local courts, judges are elected. Elections attract different candidates--politicians, police chiefs with law degrees, etc. Some of these are not likely to know or question the scope of their new duties. So when they put on the robes, even the conservatives often do what liberals have been doing for a generation--they push away the rules now and then, and ask themselves what the rule ought to be.

And that is wrong.

Robert Bork puts it this way:

In law, the moment of temptation is the moment of choice, when a judge realizes that in the case before him, his strongly held view of justice, his political and moral imperative, is not embodied in a statute or in any provision of the Constitution. He must then choose between his version of justice and abiding by the American form of government.... To give in to temptation, this one time, solves and urgent human problem, and a faint crack appears in the American foundation. A judge has begun to rule where a legislator should.

Robert Bork, The Tempting of America: the Political Seduction of the Law, 1990, p. 1.

What About John Roberts, anyway?

Mr. Roberts seems to have been an ideal choice. There may still remain some doubt about his views in specific cases--but those are off limits anyway. As for qualifications, what doubt could there be? What a resume. His only flaw may be the way he hedged about his membership in the Federalist Society, an organization Bork referred to in a WSJ article today asa farm team full of future judicial candidates. As a Federalist myself, I was surprised by the hesitation. But otherwise, Roberts was a good choice. Still, Bush passed up a handful of possibly better candidates, though none might have been as easily confirmed as Roberts.

Then again, why don't Republicans pick the clear conservatives? Democrats sent up Ginsberg, general counsel to the ACLU, and no one said boo. Now the GOP has the majority. Use it.

Friday, October 21, 2005

Primer One: Judicial Philosophy and the Confirmation Process

There’s an old story about two judges, both of whom have achieved larger-than-life status in legal circles. It seems Learned Hand had lunch with Oliver Wendell Holmes, a man he greatly admired, and as the two waited for horse-drawn cabs to different parts of town, Hand wanted to say something profound, something meaningful.

“Do Justice, your honor. Do justice!” Hand cried as Holmes pulled away. Holmes turned and called back to the younger judge.

“That is not my job. My job is to apply the law.”

If Holmes’ response seems odd, it’s because of a recent but fundamental change in the way Americans view the role of judges.

Can’t we make her answer questions, so we know she’s not another David Souter?

The question of the day refers to the Ginsberg Rule—although in practice the rule is probably as old as the Court itself. When Ginsberg, general counsel for the ACLU, was asked for her personal views, she repeatedly and consistently declined to answer, explaining that she could not discuss issues which might come before her on the bench. But this is the U.S. Supreme Court—what issues won’t come before those on the bench?

The answer rests in an area of legal tradition many members of the legislature, the media, and the bar seem to have forgotten: the role of judges. We all know what politicians are, don’t we? In elementary school we hold elections and learn how to yield to the majority. We understand elected representatives. We vote for them—they make rules for us. But who are these men and women with the life appointments? Certainly not part of any democratic process, are they? Well, yes and no, but more on that later.

For now, consider this: a judge is not a politician. A politician is elected by the people—but not until he has spent an extraordinary amount of money and energy campaigning, telling everyone his views. And if he cannot publicize his views, he will not be elected. So when someone is nominated for the Court many expect him to do the same—especially legislators whose careers stand or fall based on their ability to mount effective campaigns. Tell us who you are and what you believe, they cry. But such an argument assumes the man is campaigning—seeking votes from the constituency he hopes to represent. Of course, he is not—and that's the point. A judge does not serve the electorate. He serves the law, and the people only indirectly. If, for the sake of analogy, the judge were said to have a constituency—a body to which he must remain faithful—that “constituency” is the nation’s body of democratically created law. To that end, he swears an oath to uphold the law, regardless of his personal feelings about the cases.

A Supreme Court justice has an even higher obligation. He takes an oath to uphold the Constitution and to faithfully judge between that text and all the lesser laws with which it may be found in conflict. This is the single purpose of the U.S. Supreme Court—analyzing the gray areas between the Constitution and the state and federal laws that cross it. And what about the judge's personal opinion on the topic? It is irrelevant. And most judges know that. In a stark contrast to the life of a politician, what a judge may think about abortion or gun control is to have no bearing on his decision in the legal case before him. That is, the question of what a judge may believe the law should be or ought to be does not come before him. My constitutional law professor called these “oughtness questions,” and though he was no doubt too “progressive” and practical to argue no judge faces such questions, I would argue exactly that. Questions of what the law ought to be are exactly the kind of questions judges are not allowed to ask. The fact is, judges have always “applied the law” as Holmes would put it. Seeking to satisfy his own inner sense of justice was never a judge’s role. In fact, for a judge to look within himself for answers rather than within the Constitution, is arguably a flagrant abuse of power or a serious dereliction of duty. The worst thing a judge or appellate justice can do is to ask himself what he thinks the law ought to be. That question is reserved to the legislators and the voters. When an individual case, with its unique set of facts, arrives before the judge, his role is to apply the law as it has come to him via the democratic process—a challenge great enough for even the sharpest minds.

Our system does not give politicians a vote in individual cases. Nations whose legal systems are so porous that political bosses can control the outcome of legal cases—taking on the judge’s role—are among the most corrupt places on Earth: North Korea, Sudan, Afghanistan under the Taliban, Iraq under Saddam. And yet, most Americans don’t even notice when judges take on a legislative role. Nevertheless, the fact remains that judges are not to ask themselves what they think the law ought to be. What the law ought to be was already determined, by the framers of the Constitution and the voters and legislators who drafted the rest of America’s federal and state law. Consider the contrast: on the one hand you have the Constitution and another state or federal law hammered out in the give-and-take of a lengthy and complex legislative process. On the other hand, you have a judge willing to ignore both while he looks inside himself at some fallable internal compass. Would you be willing to put the fate of America’s future in the hands of a judge contemplating his own navel? Or to put the question in more democratic terms, would you rather bet your nations’ hopes on the beliefs of hundreds and hundreds of people who campaigned on those beliefs, or one a handful of judges who have spent their lives professional lives arguing so many different sides to each question that what they may secretly believe will forever remain a mystery? In other words, it is the politicians who get to follow their hearts. But after legislators draft the law, judges are forbidden to follow their hearts. They must follow the law. This is the democratic process.

The judge’s opinion, therefore, is irrelevant—a distraction at best. And because he is not to seek counsel in his own opinion, his opinions are likewise off limits during the confirmation process. The only question he is to consider is the meaning of the Constitution as interpreted by the Court to date.

This brings us to the more acceptable questions about a judge's character, temperament, and judicial philosophy. When you consider that he is expected to reject his personal opinions, you can see how important these questions are. It is not easy for anyone to ignore their passionately held beliefs and rule in favor of parties they privately oppose. But that is what our traditions require. (Some notable opinions deal with just this issue. For example, as a Catholic, Justice Scalia is opposed to the death penalty, and has noted the same in an opinion—before voting in favor of a law requiring it.)

By now, you're asking--So, just how naive are you, right?
I admit it--In the 1970s the Warren Court ignored this tradition, basing some decisions on their personal opinions and—many believe—little else. Since then, many justices have followed suit. Nevertheless, judges know what is expected of them, even if commentators do not.

The judge's "constituency" is the Constitution, not her personal opinions or even the opinions of her supporters. During the coming battle remember—the nominee must support the Constitution, not Democrats and not Republicans. What matters is not her personal opinions, but her commitment to put those opinions aside when necessary and rule according to the text.

Primer Two: What about Roe v. Wade? Will it be overturned? Stare De-Who?

What thoughtful American isn’t speculating on the abortion question? You can probably get odds from the on-line bookies. But this begs the not-insignificant stare decisis question. The Latin phrase means “to stand by things decided,” and refers to those cases that bind the Supreme Court. One wildly popular radio pundit wrongly used this term recently to describe a lower court’s obligation to follow a higher court’s opinion. But that’s not what lawyers commonly refer to as stare decisis. Stare decisis refers to the practice, the rule, really, that the Supreme Court follows its own opinions.

Yes, believe it or not, even the highest court in the land can’t just go around making up law—or it’s not supposed to anyway. That’s the job of the legislature, remember? Again, Americans understand that because they voted for them. Conversely, when nine judges—appointed for life and accountable to no one—start making up new law, aptly described as legislating from the bench,’ people are outraged. And often they should be. The way the Supreme Court “makes” law is by tossing out laws made elsewhere—some in lower courts, but most through America’s unsurpassed democratic processes. The Roe v. Wade decision, for example, threw out a Texas law making abortion illegal. Numerous other states had similar laws, all of them drawn up by legislatures, composed of hundreds of people duly elected to represent and enact the will of the hundreds of thousands of citizens in those states. What the Court did—and continues to do in cases every session—is toss out laws written and passed through a pure democratic process. But the same cannot be said for the processes of the Court. The nature of the Supreme Court—life appointments, the “cult” of privacy (how many people you know would recognize John Paul Stevens or Antonin Scalia if they walked into the room?)—removes it from the political pressures of the democratic process. And the Court’s process is not democratic. Some writers call it anti-democratic, simply because its work as often as not requires the Court to reject democratically created laws. So then, the Court, doing exactly what the founders designed it to do, is not a democratic body. Instead, it is an auditor, keeping the books on all state and federal laws, making sure the numbers add up according to the rules of that higher authority known as the Constitution.

Most people understand this process and adapt. When state laws are ruled unconstitutional, citizens generally accept the decision. Perhaps those offended by the rejection of laws drafted and passed according to the will of the people can shrug their shoulders and give the Court the benefit of the doubt, knowing it acts on behalf of a higher authority, the U.S. Constitution.

But how do people feel when the Court overturns its own prior rulings? When it considers stare decisis, but determines that correcting a decades-old wrong is more important? People feel bad. More specifically, they feel cynical, skeptical, often angry. When Roe v. Wade was created it was a bad ruling with no basis in the Constitution. Clearly abortion should have remained an issue for the states. But the activist Warren Court (a group famous for making law out of its own opinion, then burying that opinion like an artifact under balancing tests, multi-pronged considerations, and the “nexus” of various policies and doctrines, both foreign and domestic) took up the issue and decided abortion should be legal, regardless of the democratic process in the states. In other words, regardless of the voters—screw the will of the people. Let them eat cake. (Again, the Court is not democratic.)

The decision was bad for conservatives. It angered them initially and has enraged them more and more in the years since. Ironically, much of the success of the Republican Party today is due to conservative Democrats who left their own party when it became the pro-choice, one-issue party. But the decision was bad for liberals too. It became the model, the monument to an activist court. In the thirty years since Roe v. Wade, it is the contemplation of this single case that has caused Americans of every stripe to forget entirely what it once meant to have a non-political Supreme Court. Pondering Roe v. Wade, the worst opinion of the century, has left all of us ignorant about the judicial process.

So should Roe be overturned?
Yes—if all you care about is the immediate political result. Overturn the opinion and return the issue to the states. But if you would consider the long-term results, the answer may not be so simple. Ours is not the post-war nation of patriots and true believers it still was during the 1960s and even early 1970s. Thirty years after Watergate and dozens more scandals, we suffer bitter divisions. Would Americans be content with a 5-4 decision overturning Roe? More importantly, if Roe were overturned, would they respect the new law or would they see it as something that changes depending on who is in office? Isn’t that how you would see it? Isn’t that how everyone seems to be looking at the nominations of Roberts and Miers: trade O’Connor for Roberts (or Miers, or someone even more conservative) and we can overturn Roe v. Wade?

And what happens when liberals regain the majority? Will another 5-4 decision make abortion legal again?

Can the Court change the law the way you change your shoes? Do we wish to erode Americans’ respect for the law any further? To sow more seeds of cynicism about lawyers, judges, politicians, and the democratic process?
(Incidentally, these questions are entirely political and thus fall outside the traditional considerations of judges, as noted in a previous posting. Justices taking a traditional approach to their role could be expected only to analyze statutes, the text of the Constitution, and relevant case law. Should an aberrant case require overturning, such result might occur regardless of the larger affect such a ruling might have on the culture or morale of the people.)

Clearly the best solution to Roe v. Wade is a constitutional amendment, passed by a 2/3 majority of each house. Americans understand that. They can respect that. Maybe it isn’t possible yet. The only other solution to the most politicized case in the 200-year history of the Court is a unanimous ruling from the Court. That may not be possible now or ever. But even history’s worst and most controversial opinion raises the question of stare decisis—and precisely because of that controversy. For thirty-two years, the Roe decision has been hammering away at the foundations of America’s faith in the rule of law. And overturning Roe too soon or by a less than unanimous Court would only exacerbate that damage.

The play A Man for All Seasons documents the life of Sir Thomas More, England’s Lord Chancellor. A key scene includes his debate with his son-in-law, a righteous man who is frustrated by his father-in-law’s unwillingness to arrest a man everyone knows to be bad. More won’t do it without proper grounds. His son-in-law says in effect, forget the law. Tear down the law if you have to, but get the bad man. More asks to what lengths his son-in-law would go to prosecute the devil. The young man explains hotly that he would destroy the entire English law to get at the devil. More then asks where the young man would turn for protection when the devil turned on him.

Likewise, the question facing conservatives is: to what length will we go to get at a bad case—to get Roe v. Wade?

Should conservatives destroy the institution of the law and the respect of future generations by trampling stare decisis? The film’s Thomas More would answer no. And did the movie romanticize its hero? Unlikely. More is known to have once explained that were he sitting on the bench and asked to judge between his father on one side and the devil on the other, “his cause being right, the devil should have his due.”

Those who urge respect for the law and a non-political approach to judging should not be quick to advocate the brazen political move of an immediate reversal--even of the most damaging, most cynically politicized case in U.S. history. Overturning Roe v. Wade would further politicize and thereby marginalize the U.S. Supreme Court, not only in the eyes of Roe’s supporters, but also in the eyes of its enemies—and everyone in between.

In Roe v. Wade, an ostensibly a-political court was hijacked by politicians, and a legislative flag hung proudly above the bench. Reversing that case too soon might please a majority of Americans. But it would only increase Americans’ cynicism and misunderstanding about the law and judicial process. And no matter who sits on the bench or how judicious and conservative they may appear, they would still be marching under a politician’s colors.