jim baker

[Sanford Levinson]

What surprises me is that the traditional party of authority (which is not
to describe the Republican Party as "authoritarian") is increasingly
willing to attack a primary symbol of authority--the judiciary and "rule of
law"--and to adopt the kind of vulgar realist analysis that academic
Republicans (such as Charles Fried and others) have been quick to denounce
when engaged in by persons of the left.  The obvious fact is that the
Florida Supreme Court is not self-evidently more "partisan" than is the
current United States Supreme Court.  Either we accept the proposition that
judges are basically politicians in robes or we try to cling to a view that
they are really, in some perceptible sense, servants of the law.  My own
writing has been more the former, but, then, I've been criticized as a
"nihilist" (among other things).  But it now appears that the leading
proponent of (one form of) Critical Legal Studies is none other than James
Baker, who is teaching millions of Americans to have "contempt for courts"
(or is it only courts that include judges who were/are Democrats who write
decisions that the Bush people disagree with).  A final quote, from Stephen
A. Douglas:  "Mr. Lincoln cannot conscientiously submit, he thinks, to the
decision of a court composed of a majority of Democrats.  If he cannot, how
can he expect us to have confidence in a court composed of majority of
Republican, selected for the purpose of deciding against the Democrats and
in favor of the Republicans?"  I think that this remains an extremely
troubling question, and that the Bushies might reflect on it with regard to
the willingness of those of us who don't share their views to treat the
future decisions of an even more Republican Supreme Court with respect.


Re Mark Scarberry, who writes:

<Further, the Florida S. Ct. went out of its way to say the the
legislature's making of
election laws was subject to the Fla. constitution--which of course means
subject to the Fla. Supreme Court as expositor of that constitution. That is
a direct slap at the legislature and diminishes the power the legislature
has under the US Constitution (which of course trumps the Fla. const.) to
determine the manner of selection of electors.>

I'm not at all clear what Mark is arguing.  *All* judicial review is a
"direct slap at the legislature and diminishes [its] power."  He surely
can't mean that the Florida legislature is completely unfettered in how it
"determines the manner of selection of electors," as by saying, e.g., that
only the votes of whites shall count.  So is Mark Scarberry a convert to
the views of Mark Tushnet, that judicial review should simply be junked.
(Though, of course, even Mark Tushnet wouldn't prevent the courts from
engaging in statutory interpretation, which is primarily what the Court did.)

I wonder if Republicans would be quite so angry if the networks (led by
George W. Bush's cousin who was a mole at Fox) hadn't been so cavalier in
calling the state for Bush.  What if we had all gone to sleep thinking it
was, indeed, "too close to call"?

sandy