Big Dogs Weblog

Straight Down The Middle

by Blake on May 22, 2009 at 09:03 Political

Justice David Souter retires in June, at the end of the Supreme Court’s term for this year, and a new replacement for a Supreme Court Justice will be picked by Barama and his crew. A lot will be revealed by the choice of person he makes- will he/ she be an “activist”, a person who “champions the little people”? I expect so, although I will tell you why I think this is a bad idea.

First, a Judge is, by his/ her very nature, NOT supposed to favor any side in an argument, instead, relying on proper interpretation of the law to reach a reasoned decision. Any prejudice towards one side or the other, renders the Judge’s decision biased, and presupposes a predetermined position, in which case a responsible Judge would and should recuse him/ herself from ANY decision.

In an article in the Houston Chronicle, Tara Smith, a professor of philosophy at the University of Texas- Austin, says, “Judges are not to be passive spectators; adjudication is an activity, calling for the exercise of careful, objective judgment. Appellate courts’ responsibility is to police the Constitution. The rhetoric of “activism” notwithstanding, the proper interpretation and application of our law cannot be reduced to a purely mechanical process. If it cold, we would be replacing Justice Souter with a computer.”

Neither can these justices MAKE  law- the best they can do is to interpret the laws that the legislators draft, in order that they conform to the Constitution- a hard job in and of itself, and made infinitely harder by the leading (some would say EXTREMELY MISLEADING) words inserted into various bills, designed to cause the reader of the bill to tilt for or against the content itself. 

Some examples, “unfair methods”, “predatory pricing”, a “hostile or offensive work environment”, an “appropriate fair balance”, all of these terms and more are found in the content of actual bills, and the terms are put there to satisfy the constituencies that the lawmakers wish to appease, but these same terms make the job of Justices much harder, as the terms involve nothing related to law, but everything related to a specific perspective- something the Justices must not buy into, or their decisions are not true, but tainted.

Barama wants a Justice with “Empathy”- capital E- but as Tara Smith warns, it is not enough that the Justice must be an umpire, but also more than this in adjudicating law:

“In sports, umpires do not have a say in what the rules are. They are given a complete set of rules at the start of each season and charged to call the games accordingly. In the U.S. legal system, by contrast, courts are presented not only with the Constitution ( the fundamental rules of the game, as it were), but with specific laws made by legislatures, and by agencies of the executive branch (not to mention the court’s own precedents). The court’s responsibility is precisely to determine whether all of these purported laws are compatible with the Constitution, which is our ultimate legal standard.”

The route the court must navigate is fraught with dead ends and legal land mines, but in the end, what the court must determine is if these laws are indeed valid laws. In this sense, the Justices are more than umpires in that they have a say in determining these laws’ validity. The nine Justices, whatever their personal bias, cannot roll over and acquiesce to one side or the other- to do so would be gross dereliction of duty.

It is nice that Skinny B can consider a man, a woman, a Black, Hispanic, Asian, or whatever puts a tingle up his leg, but the one thing he absolutely should not do is to attempt to put an ideologue on the court with a built in agenda of social engineering. If he does this, the damage to the court could last a generation, at least, before common sense could purge the wrongful decisions made in the name of social engineering and activism.

There is no place for activism on the bench- if you want activism, hire a great attorney with passionate convictions to argue your case, but the Justices are supposed to interpret law, not be pre- disposed to one side or another. To not be neutral is to do this country an extreme disservice, bordering on traitorousness.

Let the judges judge.

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Tags: activism, liberalism, social engineering, souter