getting over Bork, restoring our depleted legal capital

[Matthew J. Franck]

Since I count both Paul Carrese and Mark Graber among my friends, maybe I 
can intervene here.  Perhaps Paul's cri de coeur might be criticized for 
naivete, from Mark's perspective.  But the vehemence of Mark's reaction is 
baffling to me.  It is unclear whether Mark means to refer to Paul or to 
the president when he refers to "a collection of cliches known to be false, 
intended to delude the public."  But the tone of contempt in his response 
is unworthy of Mark, and undeserved by Paul.

As I understand it, Paul's argument is simply this: that there was once an 
understanding of constitutional judging, rooted in common law traditions, 
to which the notion of judicial "ideology" was alien, and in which the 
judge recoiled from any temptation to make public policy in the place of 
legislators and executives.  This has not been conclusively shown to be a 
false or deluded understanding of the judicial function, even if it was 
often honored in the breach more than in the observance.  (It may be 
something in favor of that older understanding that the American people, 
not yet conclusively shown to be universally fools, generally believe in it 
even today.)  That argument continues, and these lists are among the places 
where it continues.

That being said, I have to disagree with Paul on one or two points.  He may 
give the president, as well as Ms. Miers (and even the new chief justice), 
too much credit when he suggests that they wish to restore an older, more 
modest understanding of the judicial function.  Would that it were so, but 
I doubt it.

As for those of us who wished for a big political fight over the shape of 
the Supreme Court and have been frustrated by the nomination of Miers--and 
I count myself among those so disappointed--I see no contradiction between 
such a wish for a high political brawl on the one hand, and the end of a 
depoliticized judiciary on the other hand.  One day, and the sooner the 
better, it will take something like an ugly confrontation between the 
imperial judiciary and the other branches of government in order to restore 
the rule of law to the third branch--or else that restoration will simply 
not take place.  Now was as good a time for that confrontation as any, but 
the president has ducked the fight with the Miers nomination.  If he ever 
even understood what was at stake, that is, which I very much doubt, to my 
great regret.

Matt
***************************
Matthew J. Franck
Professor and Chairman
Department of Political Science
Radford University
P.O. Box 6945
Radford, VA 24142-6945
phone 540-831-5854
fax 540-831-6075
e-mail <mailto:mfranck at radford.edu>mfranck at radford.edu
www.radford.edu/~mfranck
***************************
At 07:13 PM 10/10/2005, Mark Graber wrote:
>Whose the politician?
>
>Most of on this list believe that the constitution does not speak clearly 
>on many points, that persons in good faith may dispute constitutional 
>visions, and that presidents, every president, appoint justices who share 
>their constitutional vision.  In short, most of us, from Randy Barnett to 
>Sandy Levinson are engaged in politics in the highest sense.  We give 
>advance our arguments, explain the merits of our ideas, and ask the public 
>and public officials to make their choice.
>
>The following post, may I suggest, is politics in the lowest sense.  The 
>idea that George Bush is an exception to this practice is 
>preposterous.   Indeed, what we have is a collection of cliches known to 
>be false, intended to delude the public.
>
>MAG
>
> >>> "Carrese Paul O Prof USAFA/DFPS" <Paul.Carrese at usafa.af.mil> 10/10/05 
> 6:45 PM >>>
>The debate over Harriet Miers on both the ConLawProf list and Law-Courts 
>list this past week - indeed, in the past few months, including 
>discussions about Roberts - suggests that originalists or 
>constitutionalists are having as hard a time leaving behind the Robert 
>Bork confirmation scenario as are their progressive counterparts.  Must 
>the Supreme Court be a, or the, central issue in American politics, and 
>must there be one heck of a political campaign and fight about each 
>nominee, central to which is their "ideological" orientation or 
>credentials?  This scenario spells trouble for an independent judiciary 
>over the long term, since what Larry Solum calls "the downward spiral" 
>makes it difficult to maintain any semblance of legal integrity, and, as 
>Hamilton argued in Federalist no. 78, if judges cannot maintain that, then 
>there is no reason to grant them judicial review or respect their 
>rulings.  So I offer to the lists a small point with large significance 
>that has been overlooked (I think) in all the reasons given about why the 
>President nominated the two candidates he did, whether they should be 
>supported or opposed, and what all this means for constitutional law and 
>judicial power in America.
>
>
>
>This is the issue of the gold stripes on CJ Rehnquist's robes -- the 
>larger import to Rehnquist adding them, to Roberts immediately removing 
>them, and why Bush would be looking for Justices likely to remove them 
>(the same principle applies to the white scarves introduced by O'Connor 
>and Ginsburg - which I think Miers, if confirmed, would not 
>wear).  "Judicial conservatives" have been concerned this week that Miers 
>is not an outspoken adherent to originalism or anti-Progressivism - e.g., 
>Wills and Barnett, as well as voices on this list.  This reaction briefly 
>arose after Roberts was nominated, but for both nominees this lens 
>overlooks the larger issue of the President's effort to try to restore a 
>traditional approach to the judiciary and its role in the constitutional 
>order by bypassing the grand debates between originalism and progressivism 
>that are so central to professors and pundits, to the two major parties, 
>and to various lobbying/advocacy groups.  The President would not need to 
>be either a constitutional theorist or anti-intellectual to adopt this 
>view; he need not be pursuing a scheme to tilt the court toward a 
>"Schmittian" view of executive power; the same goes for his main legal 
>advisers about judicial nominations (including Miers herself).  Roberts 
>cogently articulated this traditional view, and Miers will likely 
>enunciate in coming weeks - a view that many academics and pundits find 
>naïve or deliberately cynical, but, it is precisely the view we should 
>expect the president and senate in our Montesquieuan system to eventually 
>adopt in reaction to the attempt by Holmes and Wilson, launched a century 
>ago, to transform the judiciary into a policy-making branch.  While there 
>are perhaps more credentialed exponents of the modest, constitutionalist 
>view of law and judiciary among the bar and bench than Miers, she seems to 
>be a traditional common law candidate for the bench, even the highest 
>bench -- a very distinguished member of the bar with experience in both 
>local and national legal issues, who would be likely to avoid grand 
>theory; like Roberts, she could be expected to quietly undermine the 
>commonplace view held by many members of these two lists (and far beyond 
>in our political culture, thanks to folks like us), that courts and law 
>are just alternate arenas of politics and political ideology.
>
>The reason why Article III has no specified qualifications for office - 
>the only Article with none - is because it expects the President to 
>nominate, and Senators to confirm, candidates like Miers.  This is not 
>Hruskaism.  It is not selecting "stealth" nominees in a deceptive, cynical 
>sense.  It is the understanding of the judiciary before Holmes' 
>pretentious views about a "storm center" and judges being the sole 
>determiners of what the law really means - that is, the understanding 
>which allowed American judges to have judicial review, and to be quite 
>powerful and prominent but not to an imbalanced, imperial 
>degree.  Stripes, scarves, and the demand for a hullabaloo fight over the 
>"ideology" of every nominee makes or maintains an imbalanced role for the 
>judiciary in our system.  Judges in our system are supposed to be 
>stealthy, or, cloaked (in plain black, that is).
>
>
>
>Perpetual fights over the "ideology" of judicial nominees is deficit 
>spending of our legal capital.  We professors may like it, pundits and 
>lobbies may like it, but it is not sustainable.  The President's 
>nominations of Roberts and Miers advance that restoration of 
>constitutional and legal equilibrium, and the Senate has signaled its 
>acceptance of the same.  What surprises me in the past week is that 
>originalists have demanded an "ideological" nominee and lament that there 
>won't be a "national debate" or fight.  This is not representative of the 
>original, traditional, common law understanding of law and judicial power 
>in our system.
>
>
>
>Paul Carrese
>
>
>
>*******************************
>
>Dr. Paul Carrese
>
>Director, Academy Scholars Program
>
>Professor, Political Science
>
>US Air Force Academy
>
>Fairchild Hall, 6L116
>
>USAF Academy, CO 80840-6258
>
>  <mailto:paul.carrese at usafa.edu> paul.carrese at usafa.edu
>
>719 333-3563
>
>  <http://atlas.usafa.af.mil/scholars> http://atlas.usafa.af.mil/scholars
>
>*******************************
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