Wednesday, August 03, 2005
Sit. Lie Down. Roll Over. Play Dead. Good Boy.
So Roberts has now replied to 10 pages of Senatorial questions with 80-some pages of answers, as well as a file of documents regarding his work under Reagan Attorney General William French Smith. Among the latter:
[Editorial aside: In the discussion which follows, note that Roberts himself spells "policymaking" as one word; the Times's house style, obviously, is to split it in two. I'll use whichever spelling is appropriate, depending on whom I'm quoting.]
First, the bit about Federal courts needing to defer to the other two branches "whenever possible." Here are the article's actual words (as opposed to the NYT's paraphrase):
This is bullshit. Conservatives foam at the mouth about how "activist" judges fail (in the cons' eyes) to honor the Constitution, and then they turn around and assert stuff like this which has no Constitutional basis at all. In fact, the only executive and legislative oversight of the judiciary which the Constitution allows is (a) to nominate judges to the Federal bench (executive branch), and (b) to confirm or reject the nominations (legislative). The oversight is long-term and in perpetuity, not ad-hoc.
Naturally, this fosters great frustration not just in the current misAdministration and Congress, but in all of them. Who would really want their pet projects, whatever they are, to be reviewed by a court -- without also wanting to set the parameters of an allowable review?
So the desire to "curb judicial activism" is understandable, in the same way that a kid's motivation is understandable when you're teaching him to play chess and he insists on making up his own rules as he goes along.
(And don't you love the way "judicial activism" is so termed by conservatives -- and its definition accepted by the so-called liberal media -- only when judges are interpreting the Constitution (i.e. doing their job) in a way antithetical to conservative views? Where are the squawks of anti-activist outrage when a conservative judge actively throws out a chain of precedent stretching back decades or centuries?)
Again, granting the neither-a-lawyer-nor-a-jurist caveat, I'd also take issue with the assertion that the reason for insulating the courts from "popular pressure" was to forbid "policymaking." Here's the deal: Whatever the reason for it, you must grant that the courts are in fact meant to be insulated from popular pressure (the Roberts-written passage grants it); you then must also grant that this includes includes political pressure by the people's elected representatives in the executive and legislative branches. You, O President, go ahead and nominate whomever you want; and you, Senators, go ahead and confirm or deny them the appointment. And in doing so, you agree to be bound by your appointees' decisions, and the decisions of your predecessors' appointees -- just as your successors will agree to be bound by yours.
This isn't "activism," for chrissake. It's the way the system prevents activist tampering with the judiciary.
Moving on to my next objection to this passage, the bit which discusses "unelected jurists with life tenures less attuned to the popular will": What we're seeing here is an executive branch covetously eyeing the lifetime appointments of the people whom they themselves (or their successors) nominated for the appointments. They're whining, really, Gee whiz, sure we want our guy to be in office forever -- it's all those other dopes we never agreed to ourselves...! The job of jurists is not, not, not to be "attuned to the popular will." That's why they're not elected, duh.
Finally, I take issue with "judicial policymaking is also inevitably inadequate or imperfect policymaking." There's a sneaky built-in assertion here, and if you ignore its presence then you won't get what I'm about to say. The assertion is hidden in the word "policymaking." See it? No? The underlying assertion is this: What "activist" judges do constitutes policymaking.
Granted, there may be a fine line here. In the course of affirming or striking down the actions of the other two branches of government, the Federal judiciary may end up nudging the ship of state in one direction or another. Given a case on affirmative action in public universities, say, a court may determine that affirmative action policies are Consitutionally warranted, or that the Constitution provides no support for those policies. But while judging a policy's or a law's or a simple behavior's Constitutionality affects policy, it doesn't make it. Policy is what grows out of the interaction of executive, legislative, and judicial interpretations of society's needs, in the light (harsh, soft, or mottled) of the Constitution's words and legal precedent.
I have no idea how the Senate is going to decide on Roberts. And perhaps it's unfair to ask a man to affirm that he still believes in the principles he avowed 20 years ago, or to disavow them. Yet in answering the final question posed by the Senate -- regarding judicial "activism," as it happens -- Roberts now says an effective judicial process "requires a degree of modesty and humility in the judge, an ability to recognize that preliminary perceptions may turn out to be wrong, and a willingness to change position in light of later insight." Let us all hope that on this point -- unlike in his Reagan-era "article" -- John G. Roberts is no longer blowing smoke.
By the way, I was highly entertained by one answer Roberts supplied to a Senate question. The question was, "Please list all interviews you have given to newspapers, magazines or other publications, or radio or television stations, providing the dates of these interviews..." Roberts lists only 13 such interviews, dating back to 1991 and continuing through 2002. All of them took place on NPR or PBS -- those notorious bastions of liberalism.
On the role of the courts, Mr. Roberts wrote a long article, presumably as a ghostwriter for Mr. Smith, in which he held that courts should defer to Congress and the executive branch whenever possible.Before parsing this, I should make plain (like you didn't already know this):
"Not only are unelected jurists with life tenure less attuned to the popular will than regularly elected officials," he asserted, "but judicial policy making is also inevitably inadequate or imperfect policy making."
- Standard disclaimer: "I am not a lawyer." While this disclaimer is usually invoked when the speaker is about to offer legal advice to someone, I think it should apply equally to a non-professional commenting on a legal opinion. I can offer what I think is a common-sense viewpoint, though.
- I hadn't previously read all of this "long article." (You can find it online at the National Archives site. The passage which the Times cites in quotation marks appears at the bottom of page 2.) My comments may thus be representative more of a knee-jerk response than of opinions carefully weighed over the course of years.
[Editorial aside: In the discussion which follows, note that Roberts himself spells "policymaking" as one word; the Times's house style, obviously, is to split it in two. I'll use whichever spelling is appropriate, depending on whom I'm quoting.]
First, the bit about Federal courts needing to defer to the other two branches "whenever possible." Here are the article's actual words (as opposed to the NYT's paraphrase):
Congress and the Executive can be checked by the judiciary when they exceed their powers, but the judiciary is unique among the three branches in that it is the judge of its own power. As Justice Stone put it, "the only check upon our own exercise of power is our own sense of self-restraint." ... In such circumstances it is incumbent upon the other branches to aid the courts in their exercise of self-restraint. This is precisely what the Department of Justice will be doing in the arguments its lawyers present in litigation. Our effort is one to persuade the courts, who of course retain the ultimate power of decision.You've gotta love that phrase, "to aid the courts in their exercise of self-restraint." This is Roberts trying to have it both ways -- starting out, apparently conciliatorily, by conceding that the legislative and executive branches may not interfere with the courts; and then following that "concession" with the mealy-mouthed claim that the other two branches must "help" the courts to "restrain themselves."
A conscious effort in our litigation to curb judicial activism should not be viewed as an effort to politicize the courts. The federal judiciary is an independent branch of government, purposefully and carefully insulated by the Framers from direct popular pressure. The reason the courts were insulated from popular pressure, however, was precisely because their function was not conceived to embrace policymaking. Responsibility for policymaking in a democratic republic must reside in those directly accountable to the electorate.
This is bullshit. Conservatives foam at the mouth about how "activist" judges fail (in the cons' eyes) to honor the Constitution, and then they turn around and assert stuff like this which has no Constitutional basis at all. In fact, the only executive and legislative oversight of the judiciary which the Constitution allows is (a) to nominate judges to the Federal bench (executive branch), and (b) to confirm or reject the nominations (legislative). The oversight is long-term and in perpetuity, not ad-hoc.
Naturally, this fosters great frustration not just in the current misAdministration and Congress, but in all of them. Who would really want their pet projects, whatever they are, to be reviewed by a court -- without also wanting to set the parameters of an allowable review?
So the desire to "curb judicial activism" is understandable, in the same way that a kid's motivation is understandable when you're teaching him to play chess and he insists on making up his own rules as he goes along.
(And don't you love the way "judicial activism" is so termed by conservatives -- and its definition accepted by the so-called liberal media -- only when judges are interpreting the Constitution (i.e. doing their job) in a way antithetical to conservative views? Where are the squawks of anti-activist outrage when a conservative judge actively throws out a chain of precedent stretching back decades or centuries?)
Again, granting the neither-a-lawyer-nor-a-jurist caveat, I'd also take issue with the assertion that the reason for insulating the courts from "popular pressure" was to forbid "policymaking." Here's the deal: Whatever the reason for it, you must grant that the courts are in fact meant to be insulated from popular pressure (the Roberts-written passage grants it); you then must also grant that this includes includes political pressure by the people's elected representatives in the executive and legislative branches. You, O President, go ahead and nominate whomever you want; and you, Senators, go ahead and confirm or deny them the appointment. And in doing so, you agree to be bound by your appointees' decisions, and the decisions of your predecessors' appointees -- just as your successors will agree to be bound by yours.
This isn't "activism," for chrissake. It's the way the system prevents activist tampering with the judiciary.
Moving on to my next objection to this passage, the bit which discusses "unelected jurists with life tenures less attuned to the popular will": What we're seeing here is an executive branch covetously eyeing the lifetime appointments of the people whom they themselves (or their successors) nominated for the appointments. They're whining, really, Gee whiz, sure we want our guy to be in office forever -- it's all those other dopes we never agreed to ourselves...! The job of jurists is not, not, not to be "attuned to the popular will." That's why they're not elected, duh.
Finally, I take issue with "judicial policymaking is also inevitably inadequate or imperfect policymaking." There's a sneaky built-in assertion here, and if you ignore its presence then you won't get what I'm about to say. The assertion is hidden in the word "policymaking." See it? No? The underlying assertion is this: What "activist" judges do constitutes policymaking.
Granted, there may be a fine line here. In the course of affirming or striking down the actions of the other two branches of government, the Federal judiciary may end up nudging the ship of state in one direction or another. Given a case on affirmative action in public universities, say, a court may determine that affirmative action policies are Consitutionally warranted, or that the Constitution provides no support for those policies. But while judging a policy's or a law's or a simple behavior's Constitutionality affects policy, it doesn't make it. Policy is what grows out of the interaction of executive, legislative, and judicial interpretations of society's needs, in the light (harsh, soft, or mottled) of the Constitution's words and legal precedent.
I have no idea how the Senate is going to decide on Roberts. And perhaps it's unfair to ask a man to affirm that he still believes in the principles he avowed 20 years ago, or to disavow them. Yet in answering the final question posed by the Senate -- regarding judicial "activism," as it happens -- Roberts now says an effective judicial process "requires a degree of modesty and humility in the judge, an ability to recognize that preliminary perceptions may turn out to be wrong, and a willingness to change position in light of later insight." Let us all hope that on this point -- unlike in his Reagan-era "article" -- John G. Roberts is no longer blowing smoke.
By the way, I was highly entertained by one answer Roberts supplied to a Senate question. The question was, "Please list all interviews you have given to newspapers, magazines or other publications, or radio or television stations, providing the dates of these interviews..." Roberts lists only 13 such interviews, dating back to 1991 and continuing through 2002. All of them took place on NPR or PBS -- those notorious bastions of liberalism.
