The Judicial Fifth: Smoke and Mirrors?

[Bob Sheridan]

I appreciate John's reply but must admit that I pulled my percentages 
out of thin air.  The thrust of the argument is that since the Court 
will not grant cert unless it deems the issue to be of national policy 
significance far beyond the interests of the parties, isn't this an 
admission that the Court is a policy making body, and doesn't that 
require a reasonably thorough exploration of the views of nominees who 
will be making those policy choices. 

If the effect of a Supreme Court decision was to bind only the parties, 
then the Judicial Fifth would have maximum merit to preclude 
pre-judging.  But since the effect of a SC decision is to bind the 
nation, far beyond the parties, whose case only serves as a vehicle from 
which to expound doctrine, the Judicial Fifth has that much less merit.

A refusal to answer should thus be weighed against the nominee's 
candidacy because s/he is refusing to open up to the rest of the nation, 
the people beyond the actual parties who, as it turns out, are the real 
parties in interest.

rs

JFN wrote:

> 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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