Miers Critics Need to Offer More
It's easy to say "No." But, what do Miers' critics stand for? Competence? Charles Fried in NYT today sounded a lot like Dukasis's 1988 campaign today -- maybe its the Massachusetts' water:
Once a conclusion has been reached it must be announced in an opinion setting out the circumstances, the competing considerations, and the reasons for that conclusion. Otherwise the parties will feel cheated and lower court judges, lawyers, and affected interests will have no guidance in dealing with the problem in the future. In this sense Chief Justice John Roberts -- who bids fair to becoming one of our great chief justices -- was wrong in saying that his job is just to call balls and strikes. It is that, but it is just as much to explain why he has made the calls he has. The courts are the only organs of government whose job it is not only to decide contentious issues but to explain those decisions. Its most important product is those explanations, on which the enduring effect of its decisions depends.
I think Fried errs because he spends too much time analyzing the reasons for an opinion -- discounting the result. For my part, with a federal judicial system that is so morally and politically confused that it promotes moral and political confusion, it would just be good if the U.S. Supreme Court got the results right in the easy cases: abortion, eminent domain abuse, gay rights, prayer in school, etc. Damn the reasoning. I can read the KELO opinion one hundred times -- the reasoning doesn't make it any easier to swallow.
For the moment, even if I concede that Miers is a results-oriented (rather than reason-oriented) choice, someone needs to explain to me why results are less important than reasoning. Good luck!
Once a conclusion has been reached it must be announced in an opinion setting out the circumstances, the competing considerations, and the reasons for that conclusion. Otherwise the parties will feel cheated and lower court judges, lawyers, and affected interests will have no guidance in dealing with the problem in the future. In this sense Chief Justice John Roberts -- who bids fair to becoming one of our great chief justices -- was wrong in saying that his job is just to call balls and strikes. It is that, but it is just as much to explain why he has made the calls he has. The courts are the only organs of government whose job it is not only to decide contentious issues but to explain those decisions. Its most important product is those explanations, on which the enduring effect of its decisions depends.
I think Fried errs because he spends too much time analyzing the reasons for an opinion -- discounting the result. For my part, with a federal judicial system that is so morally and politically confused that it promotes moral and political confusion, it would just be good if the U.S. Supreme Court got the results right in the easy cases: abortion, eminent domain abuse, gay rights, prayer in school, etc. Damn the reasoning. I can read the KELO opinion one hundred times -- the reasoning doesn't make it any easier to swallow.
For the moment, even if I concede that Miers is a results-oriented (rather than reason-oriented) choice, someone needs to explain to me why results are less important than reasoning. Good luck!
posted by ssc | 10/23/2005 04:16:00 PM
I agree. In fact I am hoping for more 5 page opinions from the Court. Excessive reasoning is only needed to support judicial activism. THe more you stray from the words and original intent of the Consitution, the more you need to justify and rationalize your opinion. This is why we should fear to some extent those who are overly intellectual.... you may find them being too cute about their decisions.
It would take a 5 page opinion to overturn Roe. I am hoping for a clear and concise court, not a court that delivers gobs of dictum.
ssc, as I've said before, Churchill said to Chamberlain (paraphrasing from memory) "you had to choose between war and dishonor. You chose dishonor. Now you will have war."
My point being that the choice between results oriented and a good legal reasoner is a false choice (as Bubba Clinton will say). That she has no legal philosophy that I can discern gives me no confidence she will get the right answers.
Look at my post below. She is clearly pro-quotas even though the relevant statutes (in my non-lawyerly opinion) seem to plainly outlaw them. So what is your confidence that she will get the right results. Affirmative action is a big one for me. Race issues are tearing this country apart. We need to become race blind and she will be one more vote on the wrong side, and precisely because she isn't the type to read the plain language of a law (or, I suspect, the Constitution.)
The burden should be on the PRO side. It's a SUPREME COURT JUSTICE we're considering here.
As has been said over and over, there's very, very little that we know. What we do know isn't pretty.
Tell me why she's as good as Scalia.
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