the ever more mysterious Democratic Party

[RJLipkin at aol.com]

It's selective fatalism if  it's fatalism at all.
 
        Rather, I  think expending our political emotions and energy toward 
the  Court as it functions today--revering its personnel, and insisting on its  
normative, political importance in a republican democracy is a mistake, a  
deadend. To support an institution--where even a single member of that  
institution--can threaten "fundamental rights and liberties of all Americans now  and 
for generations to come" is madness. To continually vie for control of this  
institution believing that the right interpretive methodology or effective  
transformative appointments will succeed in disciplining Justices--rendering  
them committed to a fair, reflective, but committed appreciation of the  
community's good, not partisan ideology--is insanity in the  Einsteinian sense of 
doing the same thing over and over again expecting  different results. (This in no 
way is a personal attack on Sandy whose  "rant's"--I say his passion--drives 
some of the most important  discussions on these lists. It's an American 
insanity, not Sandy's.) 
 
        In my view, recovering from  insanity means taking seriously external 
mechanisms for rendering the Court's  decisions subject to reflective 
scrutiny by the elected branches. It means  retaining judicial review--if we conclude 
judicial reasoning makes a distinct  contribution to republican democratic 
governance--but jettisoning judicial  supremacy even if one believes judicial 
supremacy is not as supreme as some  claim it to be. Or to put the point 
differently and to mention just one  example, it means extirpating the possibility 
that Justices who  threaten fundamental liberties can retain their office 
without any effective  scrutiny from the elected branches or the people. If that's 
the price of  judicial independence, then judicial independence be dammed. (In 
fact, I  don't think that's the price of judicial independence.) 
 
         I'm not fatalistic,  just saturnine about achieving anything but 
partisan gratification for  political elites--now the Republicans, later 
(someday) the Democrats--from  within the present system of judicial governance.  
That's not  authentic fatalism. I'm hopeful because I want to change the system.
 
        As for leaders and  leadership. My kind of republican democracy 
decidedly opposes emphasizing "great  leaders." I think great leaders are far less 
important than a savvy, focused,  and passionate electorate.  Great leaders, 
if they existed at  all, would lead an apathetic electorate toward a goal of 
political maturity  and effectiveness and then recognize happily that their job 
was done.
 
Bobby

Robert Justin Lipkin
Professor of Law
Widener  University School of Law
Delaware
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