When is a first strike not a first strike?
When it's Anticipatory Retaliation.

October 19, 2004

American Cancer, Part II

Charlie Victor Echo

You know, this sort of back and forth dialogue is exactly why I came on board this blog...and I suppose its on me that I haven't had all that much to say of late.

BRD had some interesting things to say about the Dark Side of the Far Left, and he's right, in a way. The extremists on each side are to be feared and it is the duty of the moderate to keep both sides in check. On that we agree.

But I take issue with his apparent conclusion that due to the existence of extremism on both sides we can call it even on this debate, or that congressional oversight will protect the Supreme Court.

Let's talk about the Court first. My counterpart states:

"...one will also note that we don't changes justices with any great frequency."

But history argues that we're due for a change. We've had the same nine justices for ten years, which is the longest uninterrupted tenure since 1823!! That's right, the longest single Court in one hundred and eighty one years.

It therefore seems entirely probable that there will be at least one seat open in the next four years, and given the number of Justices who have been treated for cancer, or are over 80, or both, then we could easily see as many as three or four seats opening in the next few years.

I somehow doubt that BRD would accept the same argument if I applied it to the War on Terror. Wasn't that the same thinking on 9/10? "Well, Al-Quaeda hasn't done anything really terrible in my memory, they can't be a big threat..."

So let's talk congressional review. The thought that, "Well, the real extremists will be weeded out, right?" has an easy response:

William Rehnquist, Clarence Thomas, Antonin Scalia.

All of whom were confirmed by a Democratic Senate, if I recall correctly.

Put just two more of thier ilk (or three more if Rehnquist is one of the retirees, as admitedly seems likely) on the Court and you'll see some roll-back, almost certainly starting with Roe v. Wade.

See here's my problem. A President, even one as corrupt as Nixon, can only bedevil us for eight years, tops. But put in a reactionary Supreme Court and we could be looking at decades of trouble. Sure, we hail Brown v. Board of Education for ending Segregation, but don't forget that it was Plessy v. Ferguson that allowed it in the first place.

The Supreme Court is the final arbiter in what we can and cannot do in American society and in many respects the most important thing a President can do towards influencing that society is to decide who will be on that Court.

So that brings us back to this election and the choice of the next President. I've already argued that George W. Bush is at the very least beholden to the very reactionary forces that we both decry and at worst is actually one of them.

The question, then, is John Kerry as likely to play to the far Left in nominating a Supreme Court Justice as George W. Bush is to play to the far Right?

I don't think so.

Here's why: John Kerry is willing to listen to other opinions. He changes his mind when the facts call for it!

His opponent does not. Indeed, George W. Bush is running on the idea that come hell or high water, he'll keep driving down the road he's picked. He doesn't care about world opinion, and save for how it affects our votes, doesn't much care what Americans think either.

So he won't hesitate to nominate extremist after extremist to the Supreme Court, and eventually some of them will stick.

And then the grinding noise you'll hear will be Progress going into reverse.

Launched by Charlie Victor Echo at October 19, 2004 08:35 PM

Retaliatiory Launches


"Progress", defined as legislating from the bench, is not all it's cracked up to be, so in the highly unlikely event that this sort of progress were rolled back, I'd shed no tears. I'm thinking that the only reason that William Rehnquist, Clarence Thomas, and Antonin Scalia are defined as extremists above is solely that they don't match your preferred style of adjudicator.

And that's fine.

But their doppelgangers on the left side of the court are no less "extreme" in their own views, and have the added disadvantage, from my standpoint, of thinking that they're members of Congress, and can thus make law, without fear of being voted out and kicked to the curb.

And that's not fine.

Posted by: Patton at October 20, 2004 05:05 AM

Hmm. Yeah, darn them for Brown v. Board of Education, anyway. How dare they intrude on a century of tradition? Surely the Congress would have gotten around to getting rid of Segregation....eventually.

Posted by: CVE at October 20, 2004 06:33 AM

I must have missed the Civics class in which the status quo, pre-Brown, was deemed clearly constitutional. Plessey was a mistake, not in keeping with the constitution, and was corrected by the Court.

I don't want tradition upheld for tradition's sake. I want the law, as expressed by Congress and judged correctly within the bounds of the Constitution, to be upheld. That was done in Brown v. Board, I think.

Judges shouldn't make law - their job is purely to interpret it, and to correct injustice within a framework the People have agreed upon. Such agreement occurs through direct voting on either constitutional amendments or their congressional representatives.

All I'm saying is that I'd prefer a Supreme Court made up of apolitical jurists who can simply interpret the law.

Posted by: Patton at October 20, 2004 07:51 AM

I think it's a bit naive to expect "a Supreme Court made up of apolitical jurists who can simply interpret the law." There is no such thing as simply interpreting the law at the constitutional level. Any decision has political implications; it's not like interpreting a contract. For better or worse, we need to acknowledge that justices, no matter their intention, are acting in a political role. I don't see how it would be possible to divorce a justice's personal beliefs from how they interpret the constitution. If you are a "strict constructionist" for example, that is part of a belief system that influences how you view the role of the Court.

Having said that, I agree that the Court should make every reasonable effort to avoid constricting the democratic space in American society. Too often, people want the courts to give them results they could not achieve through the democratic process.

Posted by: MWS at October 20, 2004 02:52 PM

free hit counter