Monday, October 03, 2005

"Tend" being the operative word

The other day I commented on a BBC piece about the Supreme Court, in which Philip John Davies, a professor of American Studies at De Montfort University, lent his expertise to the analysis. His words were brought back to me today upon the announcement of President Bush's nominee to replace retiring Justice Sandra Day O'Connor. Said Professor Davies:
[In the past nominees] would have taken a law degree as kiddiwinks, but they were really politicians. Now they tend to be judges with good records.
Whoops. From today's BBC:
There has been a collective scratching of heads on Capitol Hill at President George Bush's decision to nominate a member of his inner circle with no experience of being a judge to fill the vacancy on the US Supreme Court.


Anonymous Chris said...

Chief Justice Rehnquist was never a judge before being appointed to the Court, at which time he was an assistant attorney general in the Nixon administration. I suspect the collective headscratching is being doen by BBC reporters.

8:23 AM  
Anonymous Mark said...


I watched the coverage yesterday, and indeed there seemed to be "head scratching" going on, though not by everybody. I think a lot of people are not used to the idea. They've been used to every Supreme Court justice having prior judicial experience. It was brought up that 35 previous Supreme Court justices in our history had no prior judicial experience before being appointed, though some analyst I heard yesterday countered that yes, there were cases like this, but their legal careers were more distinguished than Miers's.

My impression of her is that she's a light-weight choice. I'm not sure how well she will do during the confirmation hearings, though a few key senators in both parties appeared to be leaning towards confirming her even before she sat down before them. She has good personal raport with them.

I listened to a speech of her's from April, and she sounds like the kind of judge I'd like, at least in philosophy.

The Democratic Minority Leader, Sen. Harry Reid said that he had gotten some input from other judges, who told him that it would be good for the court to appoint some people with no prior judicial experience. I related this to an article I read a few months ago in the Atlantic Monthly, talking about how the Supreme Court had become an ivory tower, that the justices had lost touch with everyday reality. The writer used their decision on imminent domain as a prime example. It does seem like it's time to put some people in there who are "down to earth", who are not so removed from the everyday experience, though I don't know if Miers would necessarily be the best choice here. She has served as White House Counsel for a while now. As they say, the White House is like a bubble detached from reality, just by its nature. Someone outside the Beltway might've been more appropriate for this purpose.

10:32 AM  
Blogger Paul Reynolds said...

re Scott's comment on my Supreme Court article:

If I had written solely about Souter I would have gone into greater detail. I was not. I was writing about the court in general and in particular about the way in which justices appointed in the belief that they would act in one way, sometimes act in another.

Nor I am the only one to have called Souter a centrist.

"David H. Souter: Nominated by George Bush in 1990, Souter replaced William Brennan. In the decade since he joined the bench, Souter has emerged as the Court's most influential moderate, often working with Sandra Day O'Connor to establish a centrist opinion."


"He has settled into the moderate camp of the Court as evidenced by his unprecedented 24 similar votes with the centrist Justice Sandra Day O'Connor. Together with O'Connor and Kennedy, Souter has formed a moderate bloc in the Court that prevents domination from the conservative wing."


As for Professor Davies, I quote him for what he says not what he says in support of me.

The key conclusion however and one with which Scott I think does not basically disagree is that US Supreme Court is much more of a political court than anything seen here. It declares segregated education legal in one century and illegal in another. It finds a right to abortion in the right to privacy. These are not judgments based on the law but on the social values of the day.

I am not saying this is a worse way of making decisions than having a parliament do it, but I am saying that it is a different way.

Paul Reynolds
BBC ONline

6:18 PM  
Blogger Scott Callahan said...


The fact that others - including the liberal Time magazine, for goodness sake! - have called Souter a "centrist" hardly justifies the characterization. Rather than point to what others say, I'd rather point to objectively verifiable information. I think we can agree that Thomas is a conservative and Ginsburg is a liberal. (If we can't then those terms have no meaning.) If he were a "centrist" one would expect him to join in judgement with each in a roughly similar percentage of cases.

In the last term, Souter agreed with Thomas 61% of the time (The lowest of any pair of judges, Rhenquist/Stevens, was 55%). He agreed with Ginsburg 88% of the time. That is not very close, especially considering that Ginsburg herself agreed with Thomas 60% of the time. The only two judges that Souter agreed with less than Thomas was Rhenquist (59%), another indisputable conservative.

How often did Souter agree with that other centrist cited by Oyez, Justice O'Connor? A mere 73%. So let's see. Souter votes between 86% and 88% of the time with the liberal wing (Ginsburg/Breyer/Stevens) and votes with the conservative wing(Rhenquist/Scalia/Thomas) between 59% and 66% of the time. He agrees with the "centrists" O'connor and Kennedy 73%. Given this, Paul, do you really want to defend your characterization of him as a centrist?

Like Ginsburg, if we cannot agree that Souter is a liberal, then the term has no meaning, nor does the term conservative. Which makes the term "centrist" entirely incoherent.

With regard to Profesor Davies, do you agree that what he said contradicted the point of your article?

As you suspect, I agree that the court makes political decisions. But I would take issue with your contention that it makes judgements based on the "social values" of the day. (This, by the way, is precisely what liberals would have you believe, with their "living constitution" theory.) Instead, when they ignore the law to make judgements not founded in the Constitution, they do so based not on "social values" of the day (which are more accurately divined through popular elections than through the pontifications of 5 lawyers in robes), but instead on their very own personal preferences. This is precisely what is wrong with liberal jurisprudence as represented by the likes of Ginsburg and Souter.

You say you are not saying this is a worse way of making decisions than having a parlaiment do it. Well, if you won't say it, I will. We don't need judges to make decisions based on prevailing "social values". That is exactly why we have elections, and elected representatives. What we need is judges who will follow the law as written, and leave the "social values" questions to elected representatives.

In other words, what we need is more Scalias and Thomases, and fewer Souters and Ginsburgs.


7:38 PM  

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