Monday, November 07, 2005

The Constitution Can Change, But Can Justice Alito?

Senators have announced they will not be able to complete the confirmation of Sam Alito by Christmas, as the president requested. Why not? Because Alito has spent fifteen years writing opinions as a member of the 3rd Circuit Court of Appeals. These must be reviewed. But how long does that take? Considering the number of Senators involved, and the size of the staff of each, how long does it take? Friends of mine, savvy conservatives, suggest a close reading of every opinion is neccessary. But how close? What exactly are we looking for?

How do you evaluate the qualifications of a prospective Supreme Court Justice?

Are we looking for a man who will vote the right way on each issue? Are we reading these legal analyses to sift them, hoping a campaign promise or political platform will emerge? No. That's for politicians. A justice is not a politician. He is not a legislator. His personal opinions and policy positions on various issues are irrelevant. He makes no campaign promises. He puts on his black robe owing nothing to anyone. He has no promises to keep, beyond that highest promise to faithfully defend the Constitution. And the title of this post may be misleading, but maybe it isn't. Can Alito Change? Will he be another David-the Disappointment-Souther? Well, it makes no difference to me if Alito's opinions change. But assuming he has the required judicial character and philosophy (which Souter never had), those things better not change. My accountant needs to be able to handle basic addition and subtraction (especially subtraction). And judges need to be able to read two dozen written approaches to the same problem, evaluate each in light of the other and in light of the Constitution and settle which approach is required by that sublime document. Is that too much to ask? Again, it's a math problem.

The Supreme Court generally faces only two questions:

Does the Constitution allow the feds, the state or local government to enact the law that led to the present conflict? And if the law is Constitutional, was it executed in a manner respecting the rights of the parties?

The Court faces two questions, and the entire process, while extraordinarily sophisticated, is really a math problem. The judges' personal opinions, life experience, race, sex, creed, or handicap, golf or otherwise, are all completely irrelevant. Just like in math class.

Prospective Judges should be evaluated based on their scholarship, their knowledge of the law, and their judicial character, i.e., their commitment to objective, im-personal analysis, to following the law and applying it honestly, even when they disagree with the controlling law (the Constitution) as it is written.

And this is where things have gone astray.
The Court became political when its judges stopped setting aside their personal opinions.

What the Court needs today is a panel of judges who will again set aside their personal opinions, and rule according to the written law in question.

I hope nothing I have written elsewhere has created the impression that the Constitution cannot change. The Constitution can change. It can adapt; it can be malleable. It may not be a "living document" as that word is used today, but neither is it written in stone.

The Constitution can be changed. But changing the controlling law when such change is needed, is not the duty of the Court. It is the duty of the legislators. When the Court rewrites the Constitution (not talking here about every opinion's tiny, interstitial changes), the public feels disenfranchised and bitter. Fans of an Activist Court might argue that larger numbers of the public feel disenfranchised when the problems or oversights in the Constitution are left to the stalagtite constitutional amendment process. I won't refute that point here--but I disagree. Either way, changes of the past are behind us. What I'm against is future judicial activism.

In the case of Alito, I think one careful reading of his opinions is all that is required to evaluate his character, scholarship, and temperament. A slower reading, and re-reading, and rereading again smacks of blatant politics, of a party desperately searching for those phrases they can twist, take out of context, or otherwise manipulate in an outright political smear campaign. Call me cynical, but "fool me once...."


Blogger J Holden said...

steven - if we could clone you, and replace, oh, maybe 85% of America's government workers (politicians, judges, beaurocrats, etc.) with your clones, we'd be in good hands

sadly, it is not to be

so i hope with all my heart that people like you keep fighting the good fight - we need ya

3:14 PM  
Blogger dennis said...

let's just start by getting Steven somewhere in which he can use those talents more effectively. Austin, DC, Houston?

3:28 PM  
Blogger Steven Wales said...

Well, to what do I owe such praise? Thank you both of course. And well, being temporarily underemployed at least provides an opportunity to contribute elsewhere (here).

By the way, I've been thinking of a related field with related problems. Can you see the similarity between what is going on in activist courts and what is going on in the dominant media? This effort to smear the Bush administration, even after the DA said there was no evidence to support any indictments but Libby's, last year's Rathergate scandal where CBS ran with a story smearing Bush, never bothering to do the basic fact check, and before that, the networks assumed anything Kerry said was good and they made efforts to destroy the stories of dozens of Swift-boat vets... To me these stories are all alike in that they reveal a lack of integrity in today's journalism, and a lack of commitment to even the most basic of journalistic doctrines--verifying facts and seeking multiple sources. The reason is that they so desperately want these left-leaning outcomes to be true that they are willing to forego the usual standards for truth.

Reminds me of activist judges who are willing to rule with their hearts, regardless of contrary wording in the Constitution. Like so much of our society, members of both institutions suffer a profound lack of integrity.

3:52 PM  
Blogger J Holden said...

journalistic integrity is sorely lacking in American media

the bad part is that some people actually think the majority of media outlets are doing a GOOD job

how can we be so blind...

3:59 PM  
Anonymous Mom said...

Let's just hope the "silent majority" doesn't begin to believe all that trash the media put out.
And Dennis, please don't give Steven
ideas - Austin (Heaven forbid), D.C.
(way too far), etc. I need SOMEBODY
here in plain old Houston! (Sure I'm
selfish. I've never claimed not to be.)

4:39 PM  
Blogger Steven Wales said...

Let's put it this way, if you and Daddy and Wendy's folks were somewhere pushing up daisies, I would not hesitate to move to Austin, Fredericksburg or parts unknown. And why not?

But as long as you're here, it's important to be together. Right Dennis? Some things are more important even than traveling and adventure. Especially now that we have children.

But, if you would consider moving, well, then we could all get out of this tropical heat....

12:42 AM  
Blogger e said...

since the media is owned by a few it any wonder that it's slanted...i don't think will never be unbiased...i usually don't throw around statements like this (that out me as a conservative) ...but the media is always going to be long as there are people who believe what any joe blow tells them...they will vote for the hand out or the band-aid for the bleeding heart...i hate social injustice...but the media twists the conservative view point so much that it seems as though conservatives are "cold-hearted snakes"...i'm gonna make a t-shirt that says..."I'm conservative AND I like old people!"

steven...i lived in austin...i didn't like it that much...i don't understand how such a small city can have such awful traffic...but it was beautiful...and hiking there is nice...but i must tell you...houston is my favorite city in the world (i haven't been to them all...but to many)..the humidity and heat are my favorite thing here...that and the concrete jungle that is downtown...and of course...the most amazing part...the trose!...montrose that is...houston is a special place...and i have to agree...that fam is important...but a traveling family would be the very best...i traveled with a missionary and his family for about a year...we walked the camino de santiago (spain) together at some point along the way...they had 5 kids...and they all walked it...their youngest took her first step there...their oldest was was his right of passage...
they have lived and traveled all over the world...raising their kids all over...connected to each other in a way i've never seen another family connected...they are really and traveling are what's important to them...(well, mostly telling people about how amazing jesus what's important to them) ... they just aren't traditional...and they are each other's adventure...(i think now they started a family rock band.)

11:33 AM  
Blogger Steven Wales said...

So it's like Arthur Blessit meets the Partridge Family?

P.S. Say a prayer for the Lopez family--missionary friends in the Philippines. Dad and daughter have dengue fever. Please pray.

4:03 PM  
Blogger e said...

yes...exactly like that...minus the cross and the bell bottoms...but that's it...

of course we'll pray...are they friends of yours? how old is the little girl?

4:30 PM  
Blogger Steven Wales said...

They are our neighbors. They have four kids, from .8 to about 11. The sick daughter is 7.

1:52 AM  
Blogger e said...

sorry...didn't read that very did say..."missionary friends"...
as i was praying...the scripture from Psalm 100:3 stuck the message it says..."Know this: GOD is God, and God, GOD. He made us; we didn't make him. We're his people, his well-tended sheep."
that last part about being really shouted out at me when i was thinking about your and daughter are being well-tended to by the hands that crafted their bodies from his imagination...he knows how they matter what our eyes can see... i believe this is true...he has them...i'll keep praying.

8:52 AM  

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