Competing visions

[Matthew J. Franck]

I am catching up after going AWOL since Tuesday, but I owe some replies to 
folks in the debate that began over Harriet Miers and moved on from 
there.  After some self-questioning about whether private off-list replies 
were better, I opted for public on-list.  Others may wish I had gone the 
other way, but there it is.

1.      I don't know how to persuade Sandy Levinson that "it is [not] in 
fact a delusion" to hold as an ideal that, or even to locate instances in 
practice in which, judges make their decisions apolitically or 
non-ideologically.  Maybe a beginning to a meeting of our minds is to ditch 
the adjectives "political" and "ideological" as descriptors of judicial 
behavior, since they invite a contest over their own meaning that seems to 
move us away from productive exchange.

Let us try another angle of attack.  The separation of powers seems to be a 
central idea in the institutional arrangements of the Constitution.  As 
Hamilton quoted Montesquieu in Federalist 78, "there is no liberty, if the 
power of judging be not separated from the legislative and executive 
powers."  It seems important, from the perspective of Montesquieu, 
Hamilton, and countless others in our history who thought they were arguing 
about something real, that we be able to distinguish the three powers from 
one another when we see them.  Does Sandy think such distinguishing is not 
within our reach?  I humbly suggest that it is an insufficient response to 
identify finely-grained "close" cases in which reasonable people might 
disagree about which function relating to law--making it, administering it, 
or adjudicating its meaning--is at work therein.  My question is simply, 
are Montesquieu and Hamilton on a fool's errand when they put forward the 
distinction as a gross one?

This may remind people of Pres. Bush's oft-repeated remark that he wants to 
put on the federal courts judges who will not "legislate from the 
bench."  I am almost as tired of hearing that as anyone else might claim to 
be, since its sheer repetition has had a numbing effect, without reassuring 
me about the quality of the president's nominees.  But Bush uses the 
expression so much because the American people understand it to be 
essential to our system of government that judges not be legislators and 
vice versa.  Are they wrong?

2.      Mark Graber has several times used the expression "constitutional 
vision," by which I take it he means respectable, well-thought-out, 
internally consistent high-political understandings of the Constitution's 
meaning that have a rough but not perfect correspondence to ideological 
preferences--as, e.g., when he refers to his "claim that justices ought to 
pursue publicly validated constitutional visions."  In the same message 
Mark, with more equanimity than I could muster, writes that he "do[es] 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."

This surely raises the question, on what ground does Mark distinguish 
between constitutionally inferior and constitutionally superior 
visions?  Is that ground to be found within or without Mark's own 
understanding of the Constitution?  That is, is the Constitution in any 
sense an independent touchstone  for Mark's (or anyone else's) vision of 
the Constitution, or do such visions originate outside the Constitution and 
come to be imposed on it by one's will, or one's desire for certain 
gratifying outcomes?

Story says in his Commentaries that "the constitution has proceeded on a 
theory of its own," and that the job of the interpreter is to discern what 
that is.  Is he wrong?  As with my question to Sandy, recitations of the 
difficulties of discernment would seem to me to be insufficient.  As 
someone once said, "if we cannot decide which of two mountains whose peaks 
are hidden by clouds is higher than the other, cannot we decide that 
mountain is higher than a molehill?"

It is just because I believe that such work is hard but possible that I am 
perfectly prepared, unlike Mark, to denounce the Rehnquist's federalism 
"revolution" (if that is not too grand a word for such a poor molehill of a 
thing) as a constitutional usurpation.

3.      Paul Carrese will recognize in the above that he and are kindred 
spirits on many things, which he already knew.  But he has gently upbraided 
me (I think) for desiring a brawl over a Court nominee who would articulate 
a great restoration of a more modest judicial power.  In place of that 
desire Paul offers the hypothesis that, in keeping with their institutional 
interests, the president and the Senate have joined forces to appoint, in 
Roberts and now in Miers, nominees who will quietly go about effecting that 
restoration without any need for a brawl.

I have tried to entertain this idea for longer than ten seconds and find 
myself incapable of it.  The new chief justice did indeed speak quietly of 
a quieter judicial power.  But I heard nothing that persuades me this was 
any more than his version of "not legislating from the bench" 
boilerplate.  The Roberts hearings were so nearly devoid of substantive 
colloquy about anything at all, that I am still reserving judgment on 
whether Roberts was a good choice.

I think it questionable to suppose that in Roberts, the very model of a 
modern major player at the highest levels of constitutional politics, and 
in Miers, the veritable anti-Roberts in all these respects, we find 
something in common in advancing an objective that Paul and I share.  I see 
another common ground that is more possible: that Roberts, by training and 
experience, is predisposed to be drawn by the lure of the Court's present 
great power; and that Miers, in her apparent lack of experience, will show 
an incapacity to resist that lure when it is dangled in front of her.  The 
first outcome will spring from pride coupled with great intelligence; the 
second from mediocrity coupled with delighted surprise at what one can in 
fact get away with once the robe is donned.  The practical effects will be 
hard to distinguish.  (These strike me, in fact, as rough but just 
portraits of the justices these two appointees replace.)

And I have seen no evidence that the president or any members of the Senate 
have any animus against judicial supremacy.  They may hate particular lines 
of judicial decision-making, but I see no sign that they hate the Court's 
accumulation to itself of the power to make those decisions, and to demand 
obedience to them with remarkable success.  If Paul has evidence to the 
contrary, I'd like to know what it is.

Matt

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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
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