Legislating from the Bench

The conservative intellectual class has come up with this phrase, "legislating from the bench," which is supposed to indict supposed trends in the decisions of the US court system, in particular the Supreme Court.  Every recent Supreme Court nominee has affirmed that he or she will not "legislate from the bench."  Today's great fears from the intellectual right are said to center on this question--since Harriet Miers does not have any quotable past, would she "legislate from the bench" or not?  The intellectual right (IR) grounds their objections to Miers on argument, not on power.  Meanwhile the Christian right (XR) seems to be fine with Miers.  Dobson says he "knows" but can't tell why he knows--she's ok, she's "one of us."

I find the current incoherence depressing and in the interest of my own mental health I want to try to untangle some of this.   When I crack open a beer and watch the baseball game tonight, I don't want to be "self medicating," but just relaxing.  Let's start with the central mantra, "legislating from the bench."

This means nothing.  Here's how you can tell.  Ask any IR if they accept Brown V. Board of Education.  Surely Brown is legislating from the bench.  There were clear precedents supporting segregated schools, stretching back nearly to the Civil War (before which time there were basically no schools for black people). The Warren Court considered, as one of its main supporting arguments, a theory propounded in the social sciences that a segregated system of schools was inherently unequal because there was a judgmental implication in the system which the students could themselves infer, to their detriment.  Moreover, it was almost impossible, the Court argued, to achieve true equality.  But the fact was, all the legislative bodies of the day were just fine with segregated schools and with the segregated lives that went with them.   This was true not only of the states, but also of Congress.  Yet with this one judgment, vast changes eventually occurred all over the country, in nearly every nook and cranny.  It was ten years and a presidential assassination before Congress began to catch up with Brown, and as far as justice was concerned, Brown was already way too late.

Now there aren't too many IRs who will come out and say that yes, Brown was legislating from the bench, although judging by some of the other things various IRs say, they may well believe Brown was indeed legislating from the bench.  But this verboten belief has now become politically the same as the view that black people and white people are, indeed, not equal.  This view is not unanimously held by IRs, but it is held by some--it is held by William Bennett, as shown by his recent "thought experiment" wherein he maintains that aborting all black babies would indeed reduce the crime rate, but would be wrong because abortion is wrong.  The rascism in Bennett's "experiment" lies is predicting the future of individual citizens on the basis of their race, and he has not rejected that prediction as undemocratic, but rather simply rejects the idea of aborting anyone because "abortion is wrong."  And once you get out of the intellectual circles, well then of course, out there in the Republican "base," you have events, things like the recent Gretna, LA bridge blocking incident, where law enforcement officials fired over the heads of some 800 people trying to escape New Orleans after Katrina and the flood.  Far as I know, none of those officers of the law are spending any time explaining their actions.  Officers of the law come pretty close to the law itself.  (That "Brownie," he was doin' a fine old job.)

Nonetheless, most IRs probably do not believe that Brown V. is wrong, or at least would never assert such a belief in mixed company.  Therefore, the mantra, "no legislating from the bench," is incoherent.  Like most folks--including the members of the Warren Court, the Berger Court, the Rehnquist Court, and now the Roberts Court--IRs actually believe (at least politically) that it depends on the issue at hand.  Already some incoherence is dissapating.  It feels as good as a good fart, doesn't it?

Let's keep at it.  One of the problems with the IR approach to nominating Supreme Court Justices is that they mouth yet another mantra--"there is no litmus test"--but also expect that any nominee be committed to turning back particular crucial rulings of the past Court, in particular Roe V. Wade.  But the IRs are committed (politically) to the basic view that in the United States, a citizen is a citizen.  Of course some of the IR community, some strains of "originalist" theorists, for example, surely do not subscribe to the one citizen definition.  After all, the United States Constitution, as written by the Framers in the early years of the country, did not assert a one citizen definition at all.  There are a whole range of citizens defined in the Constitution.  There are the sin qua nons of citizenship, the property-owning white males.  These citizens get all the rights and duties of citizens, including the right to vote for representatives.  But there are plenty of other sort of citizens of the US who don't get the vote: particularly women and black people.  Indeed, historically black people got the vote well before women did.  (And isn't it odd that our more recent Court history mirrors that same chronology.  First comes Brown, which emancipates black people at the practical level of public education and public facilities generally.  Then comes Roe, which emancipates women from the oppression of their bodily difference from men--namely the fact that only women can bear children.)

When it comes to the Christian Right's views on Supreme Court nominees, things are at least simpler.  XR spokesmen have pretty much fallen in line with the Supreme Commander, the great white father George W. Bush.  Miers is fine because George has spoken.  Moreover, when it comes down to Roe, XRs (male and female) pretty much still agree with the Framers: women really shouldn't be voting at all, at least not if they're single entities standing alone in the voting booth.  Marriage, for XRs, does what it has always done.  It confers status on the wife, it legitimizes the child. A married man gets two votes; his wife gets to pull the lever for him. It is no accident that a child without a "legal" father is in some ways illegal, nameless, a "bastard."  It is no accident that the problem, for XRs, is "unwed mothers."  Power for XRs flows from the father god to the father president to the father husband.  If George says Miers will never change her mind over the next 25 years--a truely amazing statement by the way, and one which would in general be deeply disqualifying if true about Miers--well then George has spoken.  It may even be, if Miers' fealty to George is as deep as is being asserted, that his simple assertion of this characteristic in Miers will make it true.  That's loyalty.  In the XR universe, a grown woman is properly a wife and mother, and votes as her husband tells her to.  Her status is akin to property.  If a woman doesn't get married and pregnant in her 20s there's hardly a place for her at all--she's just some human junk, an old maid, a spinster, a little old lady in tennis shoes, an unwed mother.

Or a Supreme Court Justice, you may say--since Ms Miers is unwed and childless.  But Miers, like Ms Rice, has attached her star to a very powerful man, hasn't she?  Bush's guarantee amounts to this: she will vote my way, forever.  In the XR world as it would be, she's otherwise not qualified to vote, and one of these days, after the XRs finish up with Roe and the same sex marriage thing, well they might just get back around to woman's sufferage, which is, in fact, the deepest basis for Roe and the same sex marriage thing anyway.  Granted, psychology gets ahead of legal argument here to some degree, but would Delay (a fine XR) have intervened in the case of the sad demise of Mr. Schiavo?  I doubt it.  For XRs, it all goes back to the Genesis Rib myth.

If it's not about the mantra of legislating from the bench, it's about power.  That's not incoherent, it's just wrong.  If anything is true about America, it is that we have one kind of citizen.  We of course accept that money does matter, and that some few monied citizens (members of the Bush clan for example, and of the Kennedy clan, for another) actually do have a lot more practical power in some ways than do others of us, the working stiffs, the employees, the folks trying to run a little business, the women, the various minorities, the children, the old.  But we don't want to codify this financial power difference into the basic body politic. That's why the Constitution has changed since those simple days of 1789.  If we did, it would still be true that only propertied white men would be voting.  No doubt some of the IRs, and even more of the XRs, wish this were still true.  But this is something they only whisper to each other in the dead of night.  It is probably because of this secret whisper that we have public incoherence.  As usual, the media does nothing to help.  Instead, the mantras are chanted until, like the catechism, they become meaningless, magical gibberish, and the public, confused and vaguely annoyed, turns to the NFL and cracks another beer.

Here's the truth.  The Supreme Court must deal with the issues that come to it, case by case.  One of the things the Court must look at is precedent.  This is the wisdom of previous decisions, previous courts.  Another is the US Constitution.  There are no magic words, and nothing is as clear as glass.  This is why an approach to truth is built on argument.  A good Justice must therefore have an open, agile mind.  The only fundamental truth is, "All men (that is, people) are created equal."  The muddled and incoherent discussion of important matters, including Supreme Court nominees, which is the talisman of the current political climate of ideas, derives from the attempt by the Conservative side of the body politic, both in its rationalist intellectual wing and its dogmatic "born again" wing, to mask its fundamentally undemocratic beliefs behind shibboleths which sound reasonable to most people, and which buttress common sense notions which the Court has through the years found against.

Nonetheless, the feeling of incoherence you have, as a listener, is a symptom.  To quote Jimmy Dale, "your mind has a mind of its own."  Give it a listen

--Bill Hicks

White House Briefing:
Reporters Hit Hard on Role of Religion in Miers Pick

By Editor & Publisher Staff (Published: October 12, 2005 5:05 PM ET)

NEW YORK This afternoon's White House press briefing turned into The Adventures of Scotty & Harriet. Numerous reporters pressed Bush spokesman Scott McClellan on statements today by the president, and James Dobson, concerning the possible role of religious beliefs in choosing Harriet Miers for the U.S. Supreme Court --or in supporting that nomination.

Here are some revelant excerpts from the transcript: 

***
Q But in the context of the conversation between the President's Deputy Chief of Staff and Senior Advisor and the head of a very conservative Christian organization, it sounds like code.

MR. McCLELLAN: John, what Karl emphasized in that conversation is that she is someone that has the qualifications and experience and the judicial philosophy that the American people want to see on our nation's highest court. And that's why the President selected her.

***
Q Back to Miers for a moment. When you say that Ms. Miers understands that religion has no role in the business of the Court, at the same time the President has said he knows her heart, her beliefs, her character; he talked today about people wanting to know about her life and, therefore, her religion. How are we not to interpret that her religion was one of the factors in his selection?

MR. McCLELLAN: The President makes selections based on potential nominees' qualifications and experience and judicial temperament. That is what he has done in each and every instance when it comes to appointing people to the bench. He has a long track record of appointing people who have a conservative judicial philosophy, one that is based on interpreting our Constitution and our laws, not making law from the bench. And that's what he bases his decisions on, not someone's religion.

Q So her religion played no role in her making it to the final group and then, ultimately --

MR. McCLELLAN: No, the President makes decisions based on the person's qualifications and experience and judicial temperament.

***
Q Why is Karl Rove calling up religious leaders telling them it's okay, she belongs to an ultra evangelical church?

MR. McCLELLAN: We're calling up a lot of people --

***
Q Scott, isn't -- the bleed-over here, though, that Karl was making an argument that her religious faith and her membership in the evangelical church was evidence of what her judicial philosophy -- conservative judicial philosophy would be. He was using it to buttress the question of how she would rule -- am I misunderstanding that?

MR. McCLELLAN: See, David, there's some that have -- no, there's some that have a litmus test for the Supreme Court. The President does not. The President does not ask candidates their views on issues that may be controversial, like abortion. The President looks at them and asks them what their judicial philosophy is; are they someone who is going to strictly interpret our Constitution and our laws, rather than -- and not make law from the bench. The President doesn't believe people should be legislating from the bench. He believes that judges ought to be looking at the law and applying the law.

More exerpts are currently posted on the Editor and Publisher site.
 

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