Where Left Is Right / The Old Site

Democracy for America is hosting a petition, at the urging of Senator (and ranking minority member of the Judiciary Committee) Pat Leahy of Vermont. Copies of the petition will be delivered to the Senate, encouraging them not to rubberstamp a replacement for Sandra Day O'Connor. Here's the text of the message I sent (very slightly modified):

To the Honorable Bill Nelson and Mel Martinez of Florida:

How many times, in making a decision in business or government or personal life, have you heard -- or uttered yourself -- the phrase "We'll decide that on a case-by-case basis"?

There's a reason why the phrase is in such common use: because it is, above all, reasonable. There is no area of human enterprise which benefits from a one-size-fits-all decision-making process. You could almost say that such a process would be the very opposite of decision-making: no reflection on the past required, no forethought. Animals make "decisions" that way. Plants do.

Whatever else you can say about Justice O'Connor, however you viewed her decisions, she was not an animal and she was not a plant. She performed a valuable service in every case in which she was involved: testing the circumstances against her own inner sense of what was right and what was wrong, as well as against her understanding of the Constitution. And in so doing, she often helped to keep the more one-sided instincts of her colleagues in check.

In the matter of finding a replacement for her on the Supreme Court, you have been given a unique, two-fold opportunity: (1) You can affirm, through your questions, debate, and vote, the importance of case-by-case reasoning in judicial decisions. (2) You can affirm, in your own demeanor, the importance of case-by-case reasoning in evaluating Executive branch "decisions."

Whatever you decide, do it with the clear-headed knowledge that the decision you and your colleages make will be one our families and our country will live with for years. A decision like this is not one to be dismissed with a phrase like "following marching orders." You are both human beings; you are not animals and you are not plants. Please: DECIDE, and do so in a way which honors and does not mock the whole very human act of decision-making. Please conduct yourselves with dignity, gentlemen -- and ultimately decide in favor of dignity as well.

As Leahy notes in his DFA cover letter, he voted against the nominations of both Janice Rogers Brown and Priscilla Owen. While these votes could be construed as "following marching orders" (and will probably be painted that way by conservatives, if the weasels haven't already done so), they also honor the dictum that judges have no business following marching orders or cleaving to the party line. Well done, Senator Leahy.

As for SDO'C herself, I disagreed with her decisions far more often than I agreed with them. But I never had a sense that she was a tool of ideology. If everyone (within the halls of government and without) followed her lead, we'd already be a much much finer -- and, I believe, a much more liberal -- democracy.