"There is always a philosophy for lack of courage."—Albert Camus

Wednesday, July 20, 2005

Call Me Dr. Sunshine

In the time-honored Zycher tradition of finding a cloud in every silver lining, please allow me to ask a few irreverent questions during this swoon period for Solomon, oops, John Roberts, whom I assume to be a very, very good guy in the overall scheme of things, on the basis of reactions and such from many people whose judgment I trust. Nonetheless...

First: Will he be more like Rehnquist or Thomas, that is, will he be more or less willing, respectively, to defer to the whims of the state legislatures and Congress? Or will he be willing---make that intent upon--- enforcing the Constitution? Beats me.

Second: How deferential toward precedent will he prove to be? Or will he be willing/intent upon throwing out such silly and destructive decisions as that on "public use/takings" in Kelo? Beats me.

Third: Will the enthusiasm for Roberts among the Republican base allow W to nominate a squishball like Gonzalez when Rehnquist retires next year? And what about the prospective departure of that giant of legal reasoning, John Paul Stevens? Beats me.

Fourth: It is very good that W decided not to take the easy path and preserve the O'Connor seat as a Womyn's appointment. But it would have been nice to send a signal that shrinking from a real fight with the lefties is not in the cards, and the Roberts appointment is a missed opportunity to shove the nuclear option down their throats. Will W avoid a fight the next time around? Beats me.

Fifth: I assume that Roberts will not acquiesce in the latest fad, to wit, the use of foreign law and purported "international opinion" as a criterion with which to allow the judges to impose their own views on everyone else. Will any of the Republicans on the Judiciary Committee ask Roberts about this? Beats me.

Sixth: Will anyone point out that we are in a legal/Constitutional mess not only because of the lefties and the desire of judges to get invitations to the Georgetown cocktail parties, but also because of such self-promoting gasbags as Bill Bennett, a hypocrite perfectly willing to put others in jail for their vices while making excuses for his? Because of Bennett, we wound up with the ineffable Tony Kennedy on the court, instead of Doug Ginsburg, because the latter smoked some pot while at Harvard, or something like that truly significant. Ginsburg would have been the best guy by far on the Court in a long time; will anyone tell Bennett to shut up when he starts to pontificate about strict constructionism and the like? On this one I think that I know the sad answer.

Anyway: Just asking.

11 comments:

Tlaloc said...

"Fourth: It is very good that W decided not to take the easy path and preserve the O'Connor seat as a Womyn's appointment. But it would have been nice to send a signal that shrinking from a real fight with the lefties is not in the cards, and the Roberts appointment is a missed opportunity to shove the nuclear option down their throats. Will W avoid a fight the next time around?"

Probably depends on if things are going this badly for Bush the next time around. Between the foreign policy disasters, the tanking economy, and the grand jury investigations he seems to have found the better side of valor and moved away from a judicial fight. I'm impressed he was wise enough to do it frankly. I actually would have expected Rove to push for as extreme a candidate as possible so the ensuing fight would push his name out of the headlines.

James Elliott said...

1) That's a matter of speculation. Some have said that he is a Thomas in Rehnquist's clothing. Brian C. Anderson of the Manhattan Institute thinks he'll be rather Thomas like.

2) Bush has been very careful to use the "strictly interpret" trope as an assurance that Roberts will not "legislate from the bench." But his judicial record is slim, so who knows.

3) Meh. Who cares?

4) I thought it was a particularly smart maneuver. Roberts appears reasonable and, if the Democrats move to oppose him without a strong objection to latch on to, they'll appear to merely be opposing him for opposition's sake.

I had an editor who tried to make me spell "woman" and "human" with a "y." Once. Ten years ago. I think you'll find that most feminists older than 20 have grown up quite a bit.

5) Are conservatives still trying to flog that dead nag? It was stupid months ago. Still stupid.

6) And here I thought we were in a "Constitutional crisis" because Republican judges are willing to place ideology and party loyalty ahead of jurisprudence, sound judgment, and their mandate to be a check on the excesses and abuses of the other two branches.

Really, a thorough hearing is the only way we'll know any of these things. All we know is that he's made a career out of opposition to Roe v. Wade and recently dissented to his court, finding that Congress had no right to create the Endangered Species Act. Which would appear to indicate that he's one of those BS "constructionist" judges.

Tlaloc said...

"Fifth: I assume that Roberts will not acquiesce in the latest fad, to wit, the use of foreign law and purported "international opinion" as a criterion with which to allow the judges to impose their own views on everyone else."

Constitutionally we are bound to the treaties we sign. They become the law of the land.

James Elliott said...

He's talking about the fact that we're like one of three countries that still executes people for crimes committed before they were legal adults. Or, more specifically, that because the majority of Americans and the majority of the world think that's effed up, Kennedy thought that was a pretty good reason to knock it off.

Man, even Iran stopped doing that crap. We're behind IRAN. Does no one else see the problem here??

Hunter Baker said...
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Hunter Baker said...

What Dr. Zycher is talking about is the trend of the current court to consult foreign law when making decisions. This does not refer to treaties. It has long been common for the court to look at the practice of the U.S. states, but this move to be openly influenced by foreign law is completely unacceptable. Foreign law is irrelevant to ours. Besides, how would you choose? China has the biggest/second biggest population in the world. Should we follow them on disallowing internet porn? Hmmmmmm.

James Elliott said...

That's a completely spurious and intellectually dishonest comparison, and I think you know it.

Tom Van Dyke said...

I took that as a joke, James.

The point as I see it is that international law might be fine for influencing our own future legislative debates, but is entirely inappropriate for the interpretation of our existing Constitution.

Hunter Baker said...

I can't see how. What would be the basis for weighting French law more than Chinese law when the Chinese have a far larger population than even the entire European Union?

Tom Van Dyke said...

Well, maybe it wasn't a joke. Peace, I'm out.

Hunter Baker said...

TVD, it is a joke and one that proves far too much for the type of reasoning the left puts forward for bringing foreign law into the interpretation of our constitution.