Justice Stevens will not be easily replaced

Wed Apr 21 14:35:58 PDT 2010

There could be a good discussion but I'm not so sure that there can be a 
good test, in advance, as to what makes a good Supreme Court judge.

A candidate might, for instance, say that, "I've read history and am 
aware of a good deal of the terrible things that man has done to man 
both through and apart from government.  Therefore I believe that 
individual rights and protections are important.  But I also believe 
that government power is important to have a well-ordered society that 
provides security and protects individual rights while providing other 
benefits of government.  I believe that the Court, along with the 
coordinate branches, has the legitimate power to contribute to both 
proper government and a healthy respect for individual rights.  I do not 
believe that the Court should overrule the executive and legislative 
branches except in cases where, according to the better aspects of our 
tradition, the Constitution requires it.  This means being neither an 
"activist" court nor a court that refuses to act.  Beyond this I cannot 
say, for who can foretell tomorrow's cases?  The rest is a matter of 
trust.  Either trust me or don't.  I'll do the best I can."

Thus there must always remain an out on any question, whether of 
judicial restraint, alleged activism, speech, women's rights, freedom 
from unreasonable search, unlawful arrest, etc.

There's a quote from Euripides:  Man's most valuable trait is a 
judicious sense of what not to believe.

I'd like to see a candidate who could say the above and has demonstrated 
a judicious sense of what not to believe.  I'd fear a candidate bearing 
sterling credentials either as a doctrinaire liberal or conservative.  
Why?  Because I'd fear that s/he believed too much and would be unable 
to untangle him/herself from the ideology on order to bring fresh eyes 
to a problem.  Stevens seems to have been unusual in the sense that he 
could bring fresh eyes, as could Earl Warren, for that matter.

I doubt you can get much closer to a good judge than someone who has 
some seemingly conservative aspects to his mind and character in the 
sense of believing in the need to preserve what is most important in 
his/her/our (our, meaning the public over the long term) beliefs as to 
how this nation should function and enough flex in judgment and 
character to allow for the unusual cases that force old rules to stretch 
and new rules to be enunciated.

Don't know how you can ask more than this, or less.

rs

Volokh, Eugene wrote:
> 	It seems to me that these debates would be more helpful if, instead of just using the terms "realpolitik" and "real judge," the posts were more concrete about how judges are supposedly behaving, and supposedly supposed to behave.  Is the claim, for instance, that a "real judge" is a judge who focuses on original meaning?  A judge who closely follows precedent?  A judge who ignores his own personal views about sound policy results?  A judge who ignores his own personal views about sound judicial methodology?  I'm sure there's a good discussion to be had here, if we defined our terms a bit more precisely.  (Perhaps even the discussion would be a bit old hat, but perhaps not, depending on precisely what is said.)
>
> 	Eugene
>
>   
>> -----Original Message-----
>> From: Raymond Kessler [mailto:rkessler at sulross.edu]
>> Sent: Wednesday, April 21, 2010 1:52 PM
>> To: 'Miller, Darrell (mille2di)'; Volokh, Eugene; conlawprof at lists.ucla.edu
>> Subject: RE: Justice Stevens will not be easily replaced
>>
>> I'm glad to see there are still some idealists out there to counter us
>> cynics.  IMHO too many people idolize and fawn over the Justices (or their
>> favorite Justice) and refuse to see that the Justices "have no clothes."
>> Realpolitik characterizes most of the Court's work.  The only Justice who
>> seems to actually care about acting like a real judge is Kennedy.
>>
>> Ray Kessler
>> Prof. of  Criminal Justice
>> Sul Ross State Univ.
>>
>>
>>
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Miller, Darrell
>> (mille2di)
>> Sent: Wednesday, April 21, 2010 12:23 PM
>> To: 'Volokh, Eugene'; 'conlawprof at lists.ucla.edu'
>> Subject: RE: Justice Stevens will not be easily replaced
>>
>> I agree with Professor Volokh on this issue as well.
>>
>> I think a more fruitful discussion would be on the question of when does the
>> nominee think the judicial branches should invalidate laws that derive from
>> the political process.  This has the potential to cut through some stale
>> rhetoric.   Some things that are popularly enacted aggravate either the left
>> or the right (i.e. abortion restrictions, gun restrictions, state DOMAs,
>> "death with dignity" laws, etc.).  Is the nominee as likely to uphold (or
>> strike down) abortion restrictions as gun restrictions?  Are federal efforts
>> to limit the use of medical marihuana just as intolerable (or defensible) as
>> federal efforts to mandate health insurance?
>>
>>
>>
>>
>>
>>
>> -----Original Message-----
>> From: conlawprof-bounces at lists.ucla.edu
>> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
>> Sent: Wednesday, April 21, 2010 12:56 PM
>> To: 'conlawprof at lists.ucla.edu'
>> Subject: RE: Justice Stevens will not be easily replaced
>>
>> 	I don't see how much terms such as "knee-jerk" and "ideologue"
>> really add much to the analysis here.  Justice Stevens did end up being a
>> pretty reliable liberal vote, but I'm sure it was because that's where his
>> legal thinking took him, not because his "knee jerk[ed]."  He's a very smart
>> and thoughtful man, much as I've disagreed with him on many things.
>>
>> 	Likewise, I'm pretty sure that "ideologue posing as a judge" isn't
>> really much of a substantive argument in this context.  All Justices rely in
>> very large measure on standard judicial tools, such as careful attention to
>> precedent, close reading of the text, and the like; so did Justice Stevens.
>> All Justices also rely in considerable measure on their "ideology," which is
>> to say their views on hotly contested questions (usually, though not always,
>> constitutional questions) on which precedent, text, original meaning, and
>> the various other standard judicial tools have not provided sufficiently
>> definitive answers.  Justice Stevens did this; Justice Scalia does this;
>> every Justice has done this; so will the Justice that President Obama
>> appoints.
>>
>> 	It's certainly interesting to discuss how a potential nominee -- or
>> even a generic Obama nominee's -- appointment might affect constitutional
>> law, and how Justice Stevens' tenure on the Court has affected
>> constitutional law.  But it seems to me that this requires some more careful
>> and detailed analysis, rather than sloganeering.
>>
>> 	Eugene
>>
>>     
>>> -----Original Message-----
>>> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
>>> bounces at lists.ucla.edu] ...
>>> Sent: Wednesday, April 21, 2010 9:39 AM
>>> To: ...
>>> Subject: RE: Justice Stevens will not be easily replaced
>>>
>>> Judicial maverick?  Perhaps in his early years, but towards the end he
>>> became largely a knee-jerk liberal (not as bad as the rest).  It's the
>>> knee-jerkers on both sides of the political dimension who have made
>>>       
>> Anthony
>>     
>>> Kennedy one of the most powerful men in the country.  Don't kid yourself,
>>> Obama is looking for an ideologue posing as a judge.
>>>       
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed as
>> private.  Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can (rightly or
>> wrongly) forward the messages to others.
>>
>>
>> _______________________________________________
>> To post, send message to Conlawprof at lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>>
>> Please note that messages sent to this large list cannot be viewed as
>> private.  Anyone can subscribe to the list and read messages that are
>> posted; people can read the Web archives; and list members can (rightly or
>> wrongly) forward the messages to others.
>>
>>     
>
> _______________________________________________
> To post, send message to Conlawprof at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
> Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
>
>
>   