Tolerating Roberts
"The spirit of liberty is the spirit which is not too sure that it is right."
—Judge Learned Hand
I caught an hour or so of John Roberts testimony, intermingled with Senatorial bloviating, as I spent too much time in the car today. I have to confess, I'd hire a guy like him. My main concern would be whether he'd stick in the job long enough, but Chief Justice of the Supreme Court has a bit more going for it than any job I could offer. Of course, if he turns out to be NARAL and Ted Kennedy's worst nightmare pick, then sticking power might be a bad thing.
I still have reservations, but he doesn't set off the alarm bells for me. You can try to learn a lot about candidates, but you'll never know everything until you have them in the job, whether it's a receptionist or a Supreme Court Justice. Even Senators know that. Most of the hiring mistakes I've made didn't come from failure to vet prospects; it was from convincing myself someone could do the job when my instincts told me otherwise. Of course, politicians' instincts have more to do with self-preservation, so I imagine their intuitive judgment of other people might be a bit out of adjustment.
Uncertainty may not always be comfortable, but it's better than certainty, as Learned Hand's quote indicates. Uncertainty is liberty's leading indicator. Certainty is tyranny's.
Some of these thoughts (not to mention the Hand quote) were provoked by an article in the September Harper's by Cass R. Sunstein, "Fighting for the Supreme Court: How right wing judges are transforming the Constitution." Much opposition to Roberts has focused on his potential future position re: Rowe v. Wade, but Sunstein puts the discussion in a much larger context. Specifically, how the Supreme Court's balance has shifted before, in a direction that progressives would regard as sweeping, positive change in America, and which the right wing attempts to undo by remaking the court system, all the way to the top.
Sunstein notes: "[T]he Rehnquist Court has overturned more than three dozen federal enactments since 1995, a record of aggression against the national legislature that is unequaled in the nation's history." Areas of reversal include campaign finance reform, the Violence Against Women Act (remember when laws were named for what they actually were about?), and restriction of citizen suits to enforce environmental laws. And yet the Rehnquist Court was hardly radical compared to what the right envisions.
We are right to be vigilant about who gets appointed to the courts, but the trends are more important than the individuals. We should make sure we appoint people of principle, not people of ideology. And we should not buy the notions of strict construction of original intent.
In a footnote, Sunstein describes most constitutional disputes as arising between between minimalists and fundamentalists. Minimalists "dislike ambitious theories and avoid taking sides in large-scale social controversies. They prefer narrow rulings over wide ones; they have no desire to revolutionize the law by reference to first principles. They think that law, and even social peace, are possible only when people are willing to set aside their deepest disagreements and are able to decide what to do without agreeing on exactly why to do it."
In other words, a strong society ultimately comes from people agreeing to get along than from two sides appealing to fundamental principles and duking it out until one prevails. Works for me. But what do we do with all those damn fundamentalists the world around?
—Judge Learned Hand
I caught an hour or so of John Roberts testimony, intermingled with Senatorial bloviating, as I spent too much time in the car today. I have to confess, I'd hire a guy like him. My main concern would be whether he'd stick in the job long enough, but Chief Justice of the Supreme Court has a bit more going for it than any job I could offer. Of course, if he turns out to be NARAL and Ted Kennedy's worst nightmare pick, then sticking power might be a bad thing.
I still have reservations, but he doesn't set off the alarm bells for me. You can try to learn a lot about candidates, but you'll never know everything until you have them in the job, whether it's a receptionist or a Supreme Court Justice. Even Senators know that. Most of the hiring mistakes I've made didn't come from failure to vet prospects; it was from convincing myself someone could do the job when my instincts told me otherwise. Of course, politicians' instincts have more to do with self-preservation, so I imagine their intuitive judgment of other people might be a bit out of adjustment.
Uncertainty may not always be comfortable, but it's better than certainty, as Learned Hand's quote indicates. Uncertainty is liberty's leading indicator. Certainty is tyranny's.
Some of these thoughts (not to mention the Hand quote) were provoked by an article in the September Harper's by Cass R. Sunstein, "Fighting for the Supreme Court: How right wing judges are transforming the Constitution." Much opposition to Roberts has focused on his potential future position re: Rowe v. Wade, but Sunstein puts the discussion in a much larger context. Specifically, how the Supreme Court's balance has shifted before, in a direction that progressives would regard as sweeping, positive change in America, and which the right wing attempts to undo by remaking the court system, all the way to the top.
There is no question, moreover, that some of these extremists seeks to curtail or abolish rights that most citizens reagrd as essential parts of our national identity. Indeed, it is difficult to escape the conclusion that it is precisely because their ideological goals are politically unachievable that they have turned to the courts.
Sunstein notes: "[T]he Rehnquist Court has overturned more than three dozen federal enactments since 1995, a record of aggression against the national legislature that is unequaled in the nation's history." Areas of reversal include campaign finance reform, the Violence Against Women Act (remember when laws were named for what they actually were about?), and restriction of citizen suits to enforce environmental laws. And yet the Rehnquist Court was hardly radical compared to what the right envisions.
We are right to be vigilant about who gets appointed to the courts, but the trends are more important than the individuals. We should make sure we appoint people of principle, not people of ideology. And we should not buy the notions of strict construction of original intent.
The legitimacy of the Constitution does not lie in consent. It is legitimate because it provides an excellent framework for freedom and democratic self-government and promotes many other goals, as well, including economic propserity... We follow the Constitution because it is good for us to follow the Constitution. Is it good for us to follow the original understanding? Actually, it would be terrible.
In a footnote, Sunstein describes most constitutional disputes as arising between between minimalists and fundamentalists. Minimalists "dislike ambitious theories and avoid taking sides in large-scale social controversies. They prefer narrow rulings over wide ones; they have no desire to revolutionize the law by reference to first principles. They think that law, and even social peace, are possible only when people are willing to set aside their deepest disagreements and are able to decide what to do without agreeing on exactly why to do it."
In other words, a strong society ultimately comes from people agreeing to get along than from two sides appealing to fundamental principles and duking it out until one prevails. Works for me. But what do we do with all those damn fundamentalists the world around?
3 Comments:
You are a very fine writer, and I will certainly visit your site often.
While agreeing to get along might be a good solution to all of the partisan hackery, the reality is that there are the policies and ideals that are good for us, and the ones that are not. You ask in your piece how we are to deal with the fundamentalists. Well, in music, the "fundamental" is the root note of a chord, the note that all other notes are based upon. In essence, in an ideal world - a world in which every person was highly educated and urged to develop his or her own opinion - the fundamental would be simple: Don't promote ideals that harm humanity, promote ones that lift it up. In this light, I wish we were all fundamentalists. But for now, I think it is obvious that the fighting will have to continue until again become blatently obvious that the progressive mind-set is the one that leads back to the path of enlightenment, not the that of conservatism. We might ask: How do we promote the obvious without pissing off the righties?
I would love it if you would link my blog to yours.
Thanks. I'm with you part way on the musical analogy. The "fundamental" provides the root note, anchoring the melody and giving definition to the chords. A beautiful thing.
But strict fundamentalists cling to the root. They pound C over and over. They might accept an E and a G, but regard the E-flat as too negative, and think a B-flat is the work of the devil.
Some of us are clarinets and some are trumpets, so the "obvious" that is built into us starts out in a different key. (For you non-instrumentalists out there, a clarinet is B-flat instrument. Its "C" is a full step different than the trumpet's.) Rather than insisting on a certain view of the obvious, we may have to agree that your B-flat is my C so we can play together.
One last stretch of this analogy. Most instruments require a left and a right hand to play.
p.s.
Your blog link doesn't seem to work.
Hey there,
Sorry for the long time away. Yes, you make wonderful points, and I can agree fully. We do have to aggree to jam together, even though we don't all dig the very same tunes. Nevertheless, there is no room for blantant disregard for what we all know, as human beings, is good for humanity. That's my main point. We can dissagree on a great many notions, but we all ought to strive toward what is good for all of humanity, not just the minority, which is clearly the demographic of the Bush Administation - the 1% minority that is.
Lastly, due to professional affiliation, I am not blogging these days, but I will stop by on occassion.
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