Friday, October 29, 2004

Board of Directors

Austin, Texas 10/24/2004

If the federal government is a corporation with the President as its CEO (a flawed, but sometimes useful metaphor), the Supreme Court is its Board of Directors. They sit on the sidelines, out of the fray, but exert their collective will on the most important questions and disputes -- or at least the ones they consider to be most important. And, barring some sort of overt criminal behavior, they're there until retirement or death.

Indeed, from a political standpoint, they can be the gift that keeps on giving; the lagging indicator of worldview.

If you happen to be from my side of the political divide, that `lagging' served us well for several decades; the lagging culture was one that respected the public space. But now what happens if a second Bush administration ensues? Well, given their ideological outlook (for the President to say `no litmus test' would be rather like stating `no height requirement' when the field from which you draw is made up solely of NBA forwards) and the history of court appointments made by Republican administrations in the latter half of the twentieth century (Warren, Brennan, Stevens, Souter), you can be sure that whoever is nominated will be very well vetted, scoured for any presence of "incorrect" thinking.

Which brings up a different point -- and a confession. For years now, since the Nixon administration, the right has made much noise about wanting "strict constructionists" who won't "legislate from the bench". Ah, that elusive "strict interpretation of the law". The left has denied the charge. Well, here's the confession. They do. They all do. Left or right -- it doesn't matter.

And that's why it's so important. The Supreme Court justices appointed over the next presidential term (likely three, but only time will tell) are likely to be shaping American law at a time when my grandchildren are capable of following the story.

(By the way, I have one child, a son. He's not quite two and a half.)

Thursday, October 28, 2004

Strict Interpreter

Austin, Texas 10/28/2004

The campaign is almost over and the great ad blitz is in full swing.

No, I'm not talking about the presidential race; I'm not even talking about the various legislative races that are going on, filled with claim, counterclaim and hyperbole as they are (putting the most virulent of the national ads to shame, by the way). I'm talking about judges.

Here in Texas, judges are elected. Most seats are not particularly contested (as I said, this is Texas), but the rhetoric still flies. And time after time, what you hear sounds something like this:

"He shares our values. He'll be tough on crime. He'll strictly interpret the laws, not legislate from the bench."

As they say in the land of my birth, "Gimme a break!" Judges, of whatever stripe, legislate from the bench all the time. All the time. It's what they do. Left or right -- it doesn't matter. And, seriously, there's nothing wrong with that. It's the very reason why we even bother to subject judges to the political process (whether it be by election, legislative confirmation or any other method). Otherwise, we'd just have some faceless technocrat -- a legal engineer, as it were -- making these decisions. We don't; it's obviously too important.

It's high time we 'fess up on this, from both sides, at the very least in the name of honesty. (We do want honest judges, don't we? Oh wait, don't answer that). Wouldn't it be nice to hear something like:

"When he's elected he'll make sure that every possible step will be taken to imprison people who you, the voting public, find scary -- no matter what the demonstrable facts are. He treasures the values of the common people -- who can tell who's guilty just by lookin' at 'em. He'll make sure to make things right for people like us"

Same message -- we've just broken the code.

So let's cut out this "strict interpretation" stuff, OK?