getting over Bork, restoring our depleted legal capital

[Mark Graber]

Several points.

1.  The perfect may be the enemy of the good.  So it may be that, given
sinful human beings, we may be best off trying to approximate some
not-so-bad polity, then in attempting for the best, produce something
that is worse.  

2.  We may not disagree on whether a good Court is to be understood in
ideological categories.  Consider my claim that justices ought to pursue
publicly validated constitutional visions.  In this sense, I do not
regard the Rehnquist Court's federalism offensive as a usurpation
against the constitution, even though I believe it to be a
constitutionally inferior vision.  The party of state rights (in some
instances) wins elections, they get to place people who agree with their
constitutional vision on the bench.  So do I should my guys ever win an
election or two.

MAG

>>> "Matthew J. Franck" <mfranck at radford.edu> 10/11/05 2:39 PM >>>
Good point, Mark.  I am all for figuring out how the Court might work
best 
in normal eras.  But "best" must be oriented to a "good," it seems to 
me.  Hence we come back to square one: is a good Court to be understood
in 
ideological categories or not?  I say not.

Or think of it this way, using Christian terms only for illustrative 
purposes.  The fact that the normal condition of humankind is to live 
sinfully is no reason for abandoning the distinction between sinning and

living well.  Nor is it a reason to conclude in advance of the evidence 
that all people are sinners all the time.  Even in a non-heroic age such
as 
ours, it may be possible to point to judges who live by (and don't just 
swear by) the older understanding of an apolitical, non-ideological 
judiciary.  Some of the time, anyway . . .

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 mfranck at radford.edu
www.radford.edu/~mfranck
***************************
At 12:52 PM 10/11/2005, Mark Graber wrote:

Let's suppose there was a golden age or an heroic age.  Let's further 
suppose the age lasted for 30-50 years.  Wouldn't a good political
science 
conclusion be that that age was an aberration, though what the court 
normally does is what the court did the rest of the time.  And this
further 
suggests that, given the deep structure of American politics, we should 
figure out how the court might function best in normal eras than hope
for a 
new golden age.