Patterico's Pontifications

2/22/2007

Review of “Supreme Conflict” by Jan Crawford Greenburg

Filed under: Books,Judiciary — Patterico @ 12:07 am

This is my promised review of the book “Supreme Conflict” by Jan Crawford Greenburg.

It is an excellent book that I can highly recommend to any Supreme Court junkie like myself.

If you take nothing else away from this review, take this part to heart: Jan Crawford Greenburg understands judicial conservatives, and does not mock them. It is an amazing claim to make about someone who works for a major television network like ABC. But it’s clearly true. Judicial conservatives: you can make your way through all 315 pages of this book and never once get the feeling that the author is trying to belittle your agenda in any way.

That right there is worth the price of the book. But there’s much, much more.

The philosophy of judicial conservatives is well summed up by this quote from Justice Clarence Thomas:

We have stated time and time again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

To most Americans, this would seem like a fairly straightforward statement — certainly nothing outrageous or provocative. But as Greenburg explains, it was evidently outrageous enough that it provoked the liberals on the Court into revolt, when Justice Thomas dared to insert this radical language into an otherwise uncontroversial court opinion.

This is what is at stake in the confirmation wars: whether we have judges who follow simple precepts like this, or judges who ignore such common-sense principles in favor of whatever they happen to feel at the time is the right result.

I was not a politically aware being at the time of the nominations of Justices O’Connor and Kennedy. So while I had heard many of the stories before, it was useful for me to read a summary of those events and the personalities involved.

For judicial conservatives like myself, the book is a terrible recitation of What Might Have Been.

For example, long-time readers know that my least favorite Justice is the finger-to-the-wind Anthony Kennedy. The book reinforced my oft-stated opinion that Kennedy worries about public opinion more than any Justice alive. For example, Greenburg says that Kennedy’s

memos to other justices in the years after those civil right decisions sometimes mention concerns about the public’s reaction to their decisions.

And in a memo to Justice Blackmun, Kennedy wrote:

I believe it is important for the court, in a decision which is likely to be quite unpopular, to state that the court in striking down graduation prayers is not expressing any hostility to religion or religious persons.

So how did we end up with such a terrible Justice? Well, everybody knows that we may have Nina Totenberg (among others) to thank for Kennedy — since she discovered Douglas Ginsburg’s past use of marijuana. And most people know that the list of people responsible for derailing Robert Bork’s nomination includes President Reagan (for waiting on Bork’s nomination until a politically inopportune time — something I have previously discussed myself here, refined in comments to this post) and Bork himself (for his arrogance in preparing for, and his performance in, his confirmation hearings).

But did you know that we might have avoided having the execrable David Souter on the High Court — if it hadn’t been for my hero Mike Luttig? Read the book to see why. Hillary and Bill might have had to demonize a different special prosecutor, while Justice Starr helped to overrule Roe.

I found the most news in the tales of more modern events — though there were far more revelatory passages about the Miers nomination than about the Roberts or Alito nominations.

Greenburg’s discussion of the Roberts nomination reveals little I hadn’t already read about — with one entertaining exception: a comedy-of-errors story of Roberts making his way back to Washington, D.C. from London before his nomination.

The major interest of the second half of the book is the recounting of the nomination of Harriet Miers — a stunning Bush misstep that I am still proud to have played a very tiny role in helping to derail.

I announced my opposition to Miers on October 10, 2005, in this post:

I think it extremely unlikely that we’re going to learn anything meaningful between now and the time to vote. And I think we need to put pressure on the President (and Miers herself) to withdraw the nomination, to avoid the added embarrassment that would likely be caused by a defeat in committee or on the Senate floor.

It’s relatively rare that I get to look back on a blog post and think: you know, Patterico, you got that one exactly right. It’s even rarer for that to happen with a whole series of posts. But the Miers nomination, I still believe, was one of those times.

I think that blogs (and, more generally, the immediacy of the Internet) played a consequential role in revealing the depth and breadth of the arguments against Miers. Ironically, to her credit, Miers understood the central role blogs could play, saying: “I think the blogs will be really important.” And they were — though obviously not in her support.

It’s amazing to recall just how clueless the Bush Administration was about the Miers nomination. For example, Greenburg reminds us that, after the decision had been made, but before Miers’s nomination was announced, Karl Rove told Leonard Leo: “Conservatives are going to be happy.” Leo took that as an indication that the nominee would be Sam Alito. This anecdote shows that Rove and Bush didn’t have any idea how judicial conservatives would react to the nomination.

Of course, we were supposed to trust Bush. After all, he told us: “I’ve known Harriet for more than a decade. I know her heart. I know her character. ” But as I observed here, Bush also told us that he had looked into Vladimir Putin’s heart. That didn’t work out too well.

Greenburg reminds of the mounting embarrassing revelations about Miers, all tending to reveal her as a relatively vapid crony — such as the letters and cards calling Bush the “greatest governor ever.” Greenburg describes as a defining moment the October13 David Brooks column about Miers’s Texas Bar Association columns. (As of the publication of that column, I had already noted these columns on October 7 (courtesy of Jim Lindgren). I had noted Miers’s criticism of lawyer-bashing Republicans on that same date. And, relying on one of those articles, I had pointed out similarities between Miers’s and O’Connor’s language on affirmative action on October 8.)

Also troubling was the manner in which Miers had been vetted. At the time, I noted John Fund’s article arguing that it was a conflict of interest for Bush to vet Miers though her immediate subordinate, William Kelley. Here is a revealing passage from the book that well illustrates the problem:

In talking with the lawyers on his staff, Bush had only one question. “Is Harriet qualified?” Bush asked, looking directly at Kelley in one meeting with other advisers.

Kelley did not answer directly. “Mr. President,” he said, “Sam Alito is the best nominee.”

“But is she qualified?” Bush asked.

“The answer,” Kelley concluded, “is yes.”

Given his position, what else was he supposed to say?

As this exchange suggests, Bush was not primarily interested in quality — at least at the time. Rather, he was interested in diversity: who was the best woman for the job?

It took Miers’s withdrawal to get Bush to finally focus on quality as the primary goal in a Supreme Court justice.

Which leads us to perhaps the biggest revelation in the Miers saga: the reason her nomination ended — and whose decision it was. The conventional wisdom at the time was that Miers herself made the decision, because of conservative opposition. But Greenburg reveals that, in truth, Miers was pushed out by Bush — because his advisors told him that she had done terribly in mock questioning sessions:

[W]hat Bush hadn’t counted on was Miers letting him down. He was so confident of her abilities that he hadn’t contemplated her inability to get through the hearings. He had focused on whether she could perform the job as a justice. His advisers had said yes. She could. It was becoming painfully clear she couldn’t. She wasn’t going to learn constitutional law in three weeks and pass a fluency exam.

Bush himself was behind the withdrawal:

Bush had a painful meeting with Card that Tuesday, October 25, in the Oval Office. Card told Bush the prep sessions were going badly, and that Miers should consider withdrawing, for her sake and for the president’s. She wasn’t ready for the hearings, Card said, and she wouldn’t be ready. After Roberts performed so well, expectations were too high. She had little support from Republicans, and it would be too easy for Democrats to savage her.

Bush already knew that. He realized how things would unfold. He agreed it was time to change course.

This passage shows that the people who wanted Miers to have her Senate hearing were misguided. Even Bush realized that having Miers testify would simply have extended the embarrassment. Perhaps the “trust Bush” crowd would have taken the decision more easily if they had known that Bush was behind the decision for Miers to withdraw — and that it wasn’t wholly motivated by conservative opposition (though that opposition certainly had much to do with it).

Contrary to the contemporaneous view that Miers made a graceful exit, the truth is that it wasn’t easy to convince Miers. Card told her things weren’t going well. Then Kelley reinforced the message:

The next morning, Kelley visited Miers’s office and picked up where Card had left off. . . . “This isn’t going to work,” Kelley said. “You have to withdraw.”

. . . .

Miers, far from acquiescing quietly, exhibited the toughness Bush knew so well. She resisted. She wanted to fight, she said. She didn’t want to quit. She could do it.

It took another visit from Card later in the day for Miers to realize that Bush was behind the efforts to get her to withdraw.

But we can all admire the way that Miers immediately got behind the nomination of Sam Alito — who had been her first choice.

As for the Alito nomination, I was amused by the fact that Andy Card called Alito’s home, identified himself as Andy Card to Alito’s teenage daughter, and asked for Alito — who wasn’t there. This sloppy way of handling the situation was the perfect way to start a rumor — something the White House was trying to avoid. This anecdote reinforced my impression of Andy Card as a rather dim functionary.

The other overwhelming impression/memory of Alito’s nomination is the huge issue made of the non-story of his ruling in the Vanguard case. Every liberal who made a big deal out of that was either ignorant or a hack. Yes, this means you.

Luckily, Greenburg treats this appropriately.

The book honestly did not seem biased in favor of judicial conservatives. I can’t say what Ms. Greenburg’s judicial philosophy is, if any. But she’s fair to us.

That’s a refreshing change from many in the mainstream media. For that reason, among many others, I can recommend this book without reservation.

39 Responses to “Review of “Supreme Conflict” by Jan Crawford Greenburg”

  1. Justice Thomas is, of course, absolutely correct. Basic Constitutional law and statutory construction stuff.

    So when the California legislature or authorized administrative bodies, define certain things as “crimes” or “public offenses” and others as “factors in aggravation”; and then take the extra step of telling us where each thing fits and how each is to be used in the criminal justice system, we who adhere to Justice Thomas’ view should take them at their word.

    Right Pat?

    Ms. Judged (f2e636)

  2. I’ve been meaning to follow up with you on that, even though you’re sort of hijacking the thread in the first comment.

    Why don’t we take it to the appropriate thread, here, and I’ll respond.

    Patterico (c34894)

  3. We have stated time and time again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there.

    Like most aphorisms of legal conservatism, this begs more questions than it answers.

    Moops (8fcb37)

  4. I never understood why Ginsburg’s use of marijuana mattered to anyone at all.

    aphrael (e0cdc9)

  5. Aphrael, when did we begin a “war against drugs” and got a “drug czar”? (If you already know the answer and were just being sarcastic, I’m not going to join you in any attacks against Reagan.)

    nk (79f144)

  6. No. 2, Pat: ‘K.

    No. 3, Moops. I’m begging. Let’s hear some.

    Ms. Judged (becd1d)

  7. NK: Oh, I already know the answer to that. But I don’t think that previous marijuana use really has any relation whatsoever to whether or not Ginsburg would have been a good Justice.

    aphrael (e0cdc9)

  8. Prior criminal acts might have a bearing.

    DRJ (605076)

  9. Ms. Judged,

    Ok. Say we have a statute that says “there shall be no unreasonable searches and seizures.” How do we know what constitutes an unreasonable search?

    Moops (8fcb37)

  10. You can’t ask the Congress to fund a “war against drugs”, appoint a cabinet level drug czar, and appoint some “pot-smoking hippie” to the Supreme Court at the same time. But I still like Reagan.

    nk (79f144)

  11. NK: perhaps. But then the error was in the first two steps, not the third.

    aphrael (e0cdc9)

  12. Moops:

    We already have such a provision. Its called the Fourth Amendment. Courts have been intrepreting it for a couple hundred years.

    Ms. Judged (becd1d)

  13. Moops:

    What if we had a statute that said no houses will be painted blue in the 100 block of Oak street?

    Assuming constitutionality, is the legislature entitled to the deference Justice Thomas described?

    Why?

    Ms. Judged (becd1d)

  14. Ms. Judged: that’s a particularly useless answer you’ve posed in #12, isn’t it? Different members of different courts have interpreted the fourth amendment differently based upon their philosophy regarding *how* the phrase should be interpreted; the structure of Moops’ question to you suggests that he’s trying to determine what your philosophy is about how such phrases ought to be interpreted.

    aphrael (e0cdc9)

  15. I know about the fourth amendment. I selected it for precisely the reason aphrael suggests.

    With regard to the blue house statute, do you think you can define a set of colors that constitute “blue” with which no reasonable person could disagree? How about “house”?

    You may find The Concept of Law, by H.L.A. Hart, illuminating on this subjects. Particularly his discussion of primary and secondary legal rules.

    Moops (8fcb37)

  16. re: Judge Ginsburg, I believe the ostensible reason for rejecting him was that he could not be a fit judge if he was willing to flout the drug laws.

    Moops (8fcb37)

  17. Moops, that was the theory; but one would hardly say that a man could not be a fit judge if he drove faster than the speed limit. Let alone that he had done so a decade prior.

    aphrael (e0cdc9)

  18. Moops: certainly ‘blue’ can be defined in such a way that no reasonable person would disagree: by setting a wavelength range.

    That is not, however, the way normal people define it in day-to-day life, and it is doubtful that the drafters of this hypothetical statute defined it in that fashion.

    aphrael (e0cdc9)

  19. Purely a question of “Ceasar’s wife must be above reproach” in my opinion.

    nk (79f144)

  20. Jan Crawford Greenburg understands judicial conservatives, and does not mock them

    “Conservatives”?!?!

    Apparently there’s only one on the court that has a grasp of what conservative really is and that’s Justice Thomas…

    The Keeper of the Flame: The Supreme Court Opinions of Justice Clarence Thomas 1991-2005

    juandos (8d769f)

  21. “blue houses”
    I bet you guys would have fun at a Home Owners’ Association and/or city Planning Commission meeting.

    Another Drew (8018ee)

  22. My sense is that Rudy Giuliani has the best chance of appointing and getting seated the judges we want on the Supreme Court — enough in my view to give him the edge in the race for President, all other issues coming out something of wash (lots that any Reagan conservative wouldn’t want.)

    How say you Patterico?

    PrestoPundit (a2369b)

  23. Patterico,

    This is such a good review that I’m going to buy the book. Okay, I admit I was already interested in the book but your review made me quit procrastinating. Amazon.com ought to give you a percentage on sales like mine.

    On the other hand, it’s disappointing that a book can generate enthusiasm primarily because it’s even-handed. One would imagine that would be the goal of every author.

    DRJ (605076)

  24. Moops, aphrael:

    You are both correct. My response was non-serious and a little on the glib side. I apologize. I’ll try again.

    When a legislative body chooses particular words or phrases in a statute, the conservative view is that we should assume that they did so deliberately and with a specific purpose or goal in mind.

    You seem to argue that because a particular word may be subject to interpretation, it should not be afforded the deference Justice Thomas described. I take a different view.

    The object of the passage was to render “unreasonable” searches constitutionally impermissible. Therefore, no judge should attempt to find a way to eliminate or ignore the word; nor should any judge deliberately attempt to interpret the word in a way that dillutes its meaning or impact.

    What a judge should do is begin with an understanding that the word is to be understood and applied in its common everyday meaning. Of course, since almost every case is different, the reasoning process must neccessarily concern itself with a solid determination of the facts, and from that proceed to an analysis of the reasonableness of the search.

    What is then deemed to be reasonable under the circumstances should guide the decison. But please note, a judge should never pretend the word isn’t there or attach a meaning to it that defies common sense.

    O.K. on to my blue house question. It should not be too difficult to determine that the legislative body in that case had as its direct aim the a prohibition against painting the color blue on houses in the 100 Block of Oak Street.

    The threshold question for the prosecutor should be “Is that house blue?” He or she should not be concerned about shades of blue. Is it blue or not blue? That’s it. If it is, it violates the statute. If not, it doesn’t.

    The use of the word “house” seems to trouble some. Let us return to Justice Thomas’ dictum once again. What is the ordinary and customary understanding of the word? Most would concede that it is a dwelling in which human beings live or one designed and intended for human occupation. In our example, the notion is further cemented by the use of address and street locations within the statute. Dog houses, storage sheds and the like are seldom addressed. If the facts of the case were that the 100 Block of Oak Street was a residential neighborhood, the inquiry is pretty much over.

    The final and most important point is that the legislature, not the courts have the constitutional and legal authority to enact law. The judiciary has no such mandate. In fact, just the opposite. “DO NOT LEGISLATE FROM THE BENCH” should be on a plaque in plain view of every judge in America. It is the obligation of the judiciary to recognize afford them proper deference and avoid, whenever possible in that task With the assistance and concurrence of the executive, of course.

    When a judge decides he/she doesn’t like a law, or the impact it may have, and undermines it by fanciful interpretation, or by ignoring plain meaning or intent they violate the principles of separation of powers by sticking their noses into the decisions and enactments of the political branches where judges have no business.

    Ms. Judged (f2e636)

  25. You seem to argue that because a particular word may be subject to interpretation, it should not be afforded the deference Justice Thomas described. I take a different view.

    That is not my argument. My argument is that the statute itself does not tell you how to interpret the words contained therein, so one must look to extratextual sources.

    But please note, a judge should never pretend the word isn’t there or attach a meaning to it that defies common sense.

    Very few people would disagree with this. The question is not whether words should be ignored, but the way in which ambiguities should be resolved. One who apparently does think that words do not mean what they say, however, is Justice Scalia in his opinion in Seminole Tribe.

    He or she should not be concerned about shades of blue. Is it blue or not blue?

    He has to be concerned with shades of blue. He has to determine whether a particular shade, which may some may call blue and others green, is actually blue. That is the heart of the problem, and it can’t be ignored by reversion to banalities such as the Thomas quote in Patterico’s post.

    If the facts of the case were that the 100 Block of Oak Street was a residential neighborhood, the inquiry is pretty much over.

    What about apartment buildings? Condos? Trailers? Nursing homes? Are those houses or not?

    So we can see how even a straightforward statute contains ambiguities. And these cannot be resolved by simply shouting DON’T LEGISLATE FROM THE BENCH.

    Moops (8fcb37)

  26. There were rumors at the time that Ginsburg’s drug use was more extensive and recent than what was publically stated. I don’t know what role if any this played in his withdrawal.

    James B. Shearer (fc887e)

  27. Moops:

    I mean no disrespect but the arguments you make are sophistry.

    In the “Blue House” case you argue that there are many ways in which the statute may not apply; shades of blue, apartments, etc., therefore the statute must be struck down or ignored by the first judge to encounter it. I think that is simply wrong.

    If a defendant can show or cast doubt upon the statute’s application to his particular circumstances, that may amount up to a defense, but is surely no reason to invalidate the statute.

    Statues do not come with users manuals. That is most likely the reason for the development of the rules of statutory construction over the last 200 years as judges struggled with the very issues you raise. Interpretation is necessary, but needs to be done in a way that respects the roles of seperate but equal branches of governemnt. Fanciful, subjective or strained interpretations are to be avoided.

    One of the first and most basic of the rules is embodied in the statement of Justice Thomas highlighted by Patterico and I. We must assume they say what they mean and mean what they say.

    We must also assume that these are educated people, well schooled in the structure, use and understanding of the English language. It follows therefore, that the words they select reflect what they intend and what they intend to accomplish by the enactment.

    It is without question that from time to time the legislature makes mistakes. When the rules of statutory construction are consistently applied the mistakes most often reveal themselves. The shortcomings, I mean.

    What happens then? By virtue of the Supreme Court’s ruling in Marbury vs. Madison, judges have assumed the power of judicial review. That is, under appropriate circumstances and by proper application of the rules of statutory construction, a judge or reviewing court may strike down a statute or portions thereof if they fail to meet constitutional standards.

    There are no perfect approaches. The beauty of our system is that it is flexible enough to allow for fine tuning and course correction. The flexibility extends across all three branches with no one having too much authority over the other.

    Its sort of like driving on a crowded freeway. If everyone stays in the proper lane, making lane changes only in a safe and legal manner, few problems develop. The three branches of governemnt are well advised to stay in their owns lanes and mind the speed limit. Facile, I know. I’m trying to finish on a lite note.

    Ms. Judged (f2e636)

  28. In the “Blue House” case you argue that there are many ways in which the statute may not apply; shades of blue, apartments, etc., therefore the statute must be struck down or ignored by the first judge to encounter it.

    I didn’t argue anything like that.

    Moops (8fcb37)

  29. Moops:

    Thomas’ statement a banality? Explain. Please.

    Ms. Judged (f2e636)

  30. Moops:

    I’m confused as to your reference to Scalia and the Seminole Tribes case. Are you talking about Seminole Tribes of Florida vs. Florida decided in 1996?

    In that case Rhenquist delivered the majority opinion. O’Connor, Scalia, Kennedy and Thomas joined without separate opinion.

    The dissenters were Stevens who wrote an opinion, Souter who also wrote one with Ginsburg and Bryer joining.

    Ms. Judged (f2e636)

  31. Thomas’s statement is a banality because virtually nobody disagrees with it.

    re: Seminole Tribes, you’re right. I had the wrong case name. It was actually Blatchford v. Native Village of Noatak, from 1991. Scalia wrote: “Despite the narrowness of its terms, since Hans v. Louisiana, 134 U.S. 1 (1890), we have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms”

    This was quoted by Rehnquist in Seminole Tribes, an opinion which Thomas joined. So I guess there were no legal conservatives on the Rehnquist court.

    Moops (8fcb37)

  32. The issue was not Miers’ quality alone. The issue was whether savaging her in hopes of getting a more conservative nominee was worth the negative fallout to the president and the GOP. The Miers savaging started the ball rolling toward losing Congress in 2006.

    Was getting rid of Miers worth losing Congress and losing the war in Iraq?

    stan (9f9858)

  33. Stan,

    I disagree with your conclusion but let’s assume you are correct. Two years of a Democratic Congress vs. 20 years of Miers? Absolutely, it was worth it.

    DRJ (605076)

  34. 32

    Miers was a symptom of Bush’s deficiencies as President not a cause of his curent problems.

    James B. Shearer (fc887e)

  35. The savaging of Miers by conservatives hurt the president in his ability to lead. For those who led the charge against her to pretend that they have no responsibility for what happened afterward is just silly. Anytime a president is subjected to withering attacks from his own supporters, it does tremendous harm to his ability to get things done in DC and to his ability to lead the military.

    Was this the only blow that Bush suffered? Of course not. The MSM slander assault over Katrina didn’t help and neither did the MSM misrepresentations over the economy. But the Miers borking was inflicted from the right. Anyone looking at public approval ratings will see a permanent hit from the Miers attack from which he has never recovered.

    Sure Miers was a mistake. But it is possible that Bush’s mistake was followed by a bigger mistake from those on the right who chose to slice Bush’s hamstrings over it. It doesn’t automatically follow that the best move from the right was to oppose her.

    If the war in Iraq is lost, can the borkers know they didn’t have any responsiblity at all? I think not. There is a benefit/cost calculus to every move. Borking Miers had consequences.

    [One of the consequences was the Alito nomination, which was in my view an unqualified success for Bush. It showed his commitment to quality, brought back many conservatives from an attitude of distrust towards Bush, and did little to alienate swing voters, who could see that Alito was a low-key, studious, solid selection. In my view, those of us who opposed Miers did Bush a great service, and helped stanch the bleeding from an unnecessary, self-inflicted wound. You should be *thanking* us, stan. — P]

    stan (9f9858)

  36. P,

    As you wrote, “one” of the consequences was Alito. And I agree with you on that particular consequence. It was good. And I simply note that you choose not to address all the other consequences — the negative ones.

    [That’s because I don’t think there are any. There were bad consequences from the nomination, but no extra ones stemming from its withdrawal. The mistake having been made, it was imperative to fix it as quickly as possible. — P]

    stan (9f9858)

  37. So it would have been better to back Miers and have her lose anyway in the Senate leaving Bush so weakened he can no longer get Alito confirmed? The quicker you fix a blunder the less damaging it is.

    James B. Shearer (fc887e)

  38. None of the conservatives who brought out their knives from the outset did so because they thought she couldn’t get confirmed. To use that as an excuse is just total BS.

    If the GOP had been solid, she would have been confirmed. Don’t put much stock in the stories in this book about her performance in the practice hearings. That sounds like a lot of tail covering to justify the White House cutting her loose. “We didn’t cave to the conservative revolt. We cut her because she was struggling.”

    Sounds like Khadafi on giving up his Nuke program. “It had nothing to do with what happened to Saddam, I just wanted to.”

    stan (9f9858)

  39. Patterico and moops,

    You’re neither talking about the point, which is the extent to which one believes that courts best serve society by divurging from what legislators said and meant when laws were enacted. Do we want judges’ considered wisdom at the time they write opinions, or faithfulness to what the other branches’s actors wrote and meant when they enacted a statute? (Similar analysis applies to constitutional law.) Conservative judicial beliefs are not illustrated by an argument about how precise a statute might have to be or how anyone truly knows “what is blue.” It’s not about such philosophical questions, it’s about the structure of our government.

    I think, Patterico, your mistake was in rising to the bait.

    I personally think it’s a greater danger to let courts readily diverge from what the more representative branches wrote and meant. I think the contrary impulse is too elitist. I have a lot of allegiance to the idea that greater participation by lots of people will in general produce smarter choices, and perhaps most importantly will minimize the horrible tendency of small groups to develop a destructive set of false beliefs that justify their own superiority, power, entitlement, etc. I think this whole issue is a very serious and difficult matter. To me, it’s a reason to vote for a candidate (and to celebrate the defeat of the Miers nomination). And deserves attention and discussion from us all.

    An example of elitism’s weakness, by the way, is the absurd failure of Republicans to nominate Sup.Ct. justices who share their mindset. It’s an astonishing failure rate, when you consider consistent left-wingers Souter and Stevens were nominated by Republican presidents, and Bush, who bothered to publicly admire Scalia and Thomas, totally botched things with his Miers choice. Were Bush a justice, it would’ve been too late for conservatives — his choice would be law. Because he was subject to pressure and influence, his eventual choice (Alito) far better serves his stated objectives for a conservative court (and the votes of those who, with a majority of Americans, elected him in 2004). In his little cocoon, Bush’s decision-making on this choice, assuming he wanted a conservative court, became outright folly. Poor guy.

    In general, as long as our system allows a change to be made more democratically, what issues really cry out for judicial activism? Did Roe v. Wade take the wind from the sails of the Equal Rights Amendment? Seemed like it to me at the time. Are we better off having a handful of unelected (and sheltered from future elections) “wise” people who decide key issues; rather than a whole society participating? I just think we’re not.

    It does bother me that this issue is often not presented neutrally, as a policy choice, but only because I think it deserves very serious talk.

    Rick (6fa40a)


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