getting over Bork, restoring our depleted legal capital

[Matthew J. Franck]

In response to Frank Cross's note below, I will say that I did not regard 
my phrasing as stating a weak claim, but as stating what I take to be a 
strong claim in mild language, so as to persuade another that he had 
treated the claim too dismissively even from his own contrary 
perspective.  The more scientifically-minded among our colleagues will see, 
I think, that a "not falsified" claim about a hypothesis can actually be a 
pretty strong claim.  And if Frank thinks he sees Santa Claus here, I urge 
him to keep his chimney clean, because I plan to visit him every Christmas.

In response to Mark Graber's earlier response to me, I would say that if 
there was no golden age, there was surely a silver one (some may get the 
comic books reference), or in Kent Newmyer's memorable book title, a 
"Heroic Age" of the Supreme Court.  And Mark subtly rearranges my argument 
at one point.  Where I had said that the traditional law-politics 
distinction was once strongly held "even if it was often honored in the 
breach more than in the observance," Mark has changed that to say that it 
was an idea that "was more often honored in the breach."  Not quite the 
same.  I think that some judges, some of the time, paid lip service to the 
tradition while violating it (think of Taney in Dred Scott).  But to say 
that this may have happened "often" is not to say that it happened even 
most of the time.

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 09:40 AM 10/11/2005, Frank Cross wrote:
>At 09:21 PM 10/10/2005, Matthew J. Franck wrote:
>>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.
>
>I'm sure I'm too much of a realist, but doesn't this seem like an awfully 
>weak claim?
>
>That we once had a notion, that, though never proved, has not been 
>conclusively disproved, even if it was more often honored in the breach.
>
>Doesn't this seem a little bit like lamenting the loss of belief in Santa 
>Claus?
>
>
>
>**********************************************************
>
>Frank Cross
>McCombs School of Business
>The University of Texas at Austin
>1 University Station B6000
>Austin, TX 78712-1178
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