Some folks have been giving Barack Obama a hard time for his claim that the court's should serve as a refuge and defender of the oppressed in America. This, the argue, is politics substituting itself for law. They gleefully point to John McCain's statement on what he's looking for in a judge -- a position that is supposedly non-ideological and apolitical. Conservative judges go where the law takes them. Liberal judges go where they want to go, law be damned.
Tragically, this position is false -- and it's a conservative judge who is pointing it out. Judge Richard Posner, one of the leading conservative jurists in America today (and possibly one of my professors at the U of Chicago) has a new book out, "How Judges Think" which pops the myth that liberal justices are more likely to vote their policy preferences than conservatives. Actually, conservative judges are statistically far more likely to do so, and not only that, the trend line for conservative judges is towards increased politically-based voting, while liberal judges actually have shown a slight decrease in their (already smaller) propensity to vote in accordance with their policy preferences.
Posner thinks the reasoning for this is that, since the Reagan administration, Republicans have relied significantly more on ideological considerations when appointing judges. Liberals, he suggests, are not as organized in demanding that their nominees be ideologically pure and committed. But Brian Tamanaha (with just a hint of snark?) suggests that maybe its just that "Democratic judicial appointees are more committed to respecting and abiding by the law (to restraining the influence of their political views)."
I don't have any problem with the presumption that courts should be defenders of the marginalized. The rights of majorities are less likely to be threatened in democracies, because they're, well, the majority, and as John Hart Ely pointed out so many years ago, majorities aren't likely to discriminate against themselves. It should be expected that the primary function of the courts will be to defend those whose interests are not likely to be defended in the democratic arena. We have for decades held to the principle that these minorities deserve special consideration by the judiciary if their equal status is society is to be maintained. Insofar as conservatives substitute their policy preferences that often counsel against protecting minorities against majorities, they are engaging in an unabashedly political project. And as for their judicial "philosophies" which "force" them into that position, as River Tam would put it, it's not part the philosophy, it's why you chose the philosophy.
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6 comments:
Just as misleading are the claims out there that there's some huge bastion of leftist judges out there standing in the way of what "the people" (i.e. the majority on social issues in certain red states who comprise what not-elitists like Peggy Noonan consider "the real America") want.
Don't piss in my ear and tell me it's raining: Republicans have dominated federal judicial appointments for the past three decades. Hell, any given majority decision by the Supreme Court necessarily has more votes from Republican appointees than Democratic ones (who I believe make up two of the last fourteen appointed justices).
On what basis do you consider Posner a conservative judge? He's an avowed pragmatist -- so far as I know, he does not hew to any of the judicial philosophies identified as "conservative," such as originalism or textualism.
His pragmatism is of a distinctly conservative bent, heavily law & economics oriented. Pragmatism for Posner = what's most efficient for society as a whole, mixed with a strong deference to democratic institutions (I just read his book on the subject). He's not a traditional conservative, but he's a definitely a man of the right.
The courts are not to defend the majority or the marginalized. This is highlighted in Leviticus 19:15 - "You shall do no injustice in judgement, you shall not be partial to the poor nor defer to the great, but you are to judge your neighbor fairly."
The courts are to carry out the rule of the law within the boundaries of the constitution. It is the role of the legislature and the constitution to protect individual rights which you might say are the ultimate of "the marginalized"
Further it is the role of the courts to have a consistent interpretation of the law. If the law or the constitution is malleable depending on the personal views of a justice then no one can stay within the law because they would not know how a particular law would be interpreted. This would be the equivalent of a tyrant with his whims. This in my opinion is why originalism is the preferred approach to the constitution as opposed to the "living" constitution. If you want a law or the constitution to mean something else I prefer a change in the law as opposed to "deconstructive" approach to its meaning.
Actually, conservative judges are statistically far more likely to do so, and not only that, the trend line for conservative judges is towards increased politically-based voting, while liberal judges actually have shown a slight decrease in their (already smaller) propensity to vote in accordance with their policy preferences.
How are these statistics calculated? Did someone look at decisions, compare them to a judge's policy preferences in each case, and calculate the difference? How do we know what a judge's policy preference is on any given issue?
The courts are not to defend the majority or the marginalized. This is highlighted in Leviticus 19:15 - "You shall do no injustice in judgement, you shall not be partial to the poor nor defer to the great, but you are to judge your neighbor fairly."
Yes, many biblical scholar contend that Leviticus was actually a lost Article to the US Constitution, possibly written by Benjamin Franklin.
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