The Judicial Fifth: Smoke and Mirrors?

[JFN]

At 8:48 AM -0700 10/19/05, Bob Sheridan wrote:
>Nine-tenths of deciding cases is to set policy for the country based 
>on the personal views of the justices.

I wonder about that. My instinct is different -- that maybe 20% of 
it's calendar has broad policy implications. Realizing that the 
distinction is uncertain, and the allocation is subjective, I wonder 
how others would apportion the calendar between cases with and 
without political constraints or imperatives for individual judges.

John Noble

At 8:48 AM -0700 10/19/05, Bob Sheridan wrote:
>Sen. Charles Schumer (D-NY) yesterday stated that Harriet Miers was 
>even less forthcoming than was John Roberts concerning views on the 
>Constitution.
>
>The justification for withholding views from the popularly elected 
>senators who must vote to confirm or reject a nominee is that the 
>Supreme Court is a Court that decides cases and it would be unfair 
>to the litigants to have justices whose views were known in advance 
>to be hostile of favorable to one party or the other.
>
>This smells like the ultimate Con-law red-herring.
>
>We really care much less about the individual litigants than we do 
>about ourselves, meaning the rest of the country, for a Supreme 
>Court opinion has a spillover effect that goes far beyond the 
>interests of the litigants.  We pay very little attention to the 
>individual litigants in Brown, Griswold, Roe/Casey, and Lawrence or 
>any other Supreme Court case.  We pay a great deal of attention, 
>however,  to the spillover effect on the rest of the country.
>
>Yet it's the spillover effect that is ignored when it comes time to 
>question nominees on their deepest held beliefs, the ones that 
>Supreme Court decisions ride on in the final analysis.  No, we can't 
>go there, because that would be unfair to the litigants.  What about 
>the rest of the country?
>
>The Supreme Court is the ultimate policy-making body in American 
>government, outweighing the president and Congress.  It is the least 
>democratic, and (perhaps) the one most dependent on the core beliefs 
>of the occupant of the position, yet it's the only one as to which 
>we cannot question nominees for the lifetime position on closely 
>because s/he's "a judge."  S/he's not just a judge.  S/he's a 
>super-legislator whether we like it or not, and we ought to be able 
>to decide our fate by asking appropriate questions, just as we do 
>candidates for Congress and President.
>
>One-tenth of what the Court does is to decide cases.  Nine-tenths of 
>deciding cases is to set policy for the country based on the 
>personal views of the justices.  It seems to me that calling the 
>Court a court is a bit of fakery that allows the judicial fifth to 
>serve as the cart that is pulling the horse.
>
>rs
>sfls
>
>
>
>Attachment converted: Macintosh HD:bobsheridan.vcf (TEXT/MSWD) (0B143E04)
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