(The Return of) Ignatz, by Sam Heldman

Friday, November 15, 2002

Following up on my "aargh" directed at some dude at NRO below, Kieran Healy makes the important point that adjudication itself -- the process of deciding cases -- is not just politics by another name, or at the very least cannot be seen as such if the courts are to have legitimacy. In case I've been misunderstood by anyone (but if so, read my last few posts on the matter and you'll see that I have not been accusing any sitting judge of politically- or otherwise nefariously-based decisionmaking), let me say I totally agree. Judging is not all politics. But judicial appointments ARE all politics. Prospective judges believe in their own various theories of constitutional law, or statutory interpretation, or approaches to common law, or approaches to administrative law, for complex and indeed never-discernable reasons. Politics is a lot of it, but not all of it; there is also philosophy and personality and experience etc. etc. etc. But the people who pick specific prospective judges to be actual judges do so for the specific political purpose of advancing the consequences that they expect those judges' theories will result in.

The guy to whom I "aarghed" was trying to gloss over this point, and trying to pretend that law has correct answers to the most hotly disputed questions. He said in paraphrase (go read it if you want) that it was wrong to oppose nominees on the grounds that they would turn back the clock on race, strike down environmental regulations, etc., because the only criterion that should matter is what the law "is". But what the law "is" is always changing, sometimes drastically. It doesn't change on its own; it changes because humans (especially robe-wearing humans) change it. To say otherwise is naive or faux-naive, and we have here a simple matter of politics as to whether we collectively WANT the courts to be more likely to rule in favor of certain interests -- again, not because the judges are nefarious, but because they are carefully-selected on the basis of their preexisting views.

Again, this is all a penetrating glimpse into the obvious, I recognize -- because otherwise, Pres. Bush would have solved the so-called "judicial vacancy crisis" by renominating all of Pres. Clinton's languished nominees, and ta-da! A full federal bench!

posted by sam 7:19 AM 0 comments


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