Well, I agree that the rejection of Bork was highly politicized, but this was not a new thing for the Senate, which earlier rejected John Rutledge for the post of chief justice in large part because of his strong opposition to the Jay Treaty. The year? 'Twas 1795.
There have always been politics surrounding the rejection (or confirmation) of Supreme Court justices. Rutledge was the first; Bork will not be the last.
I agree with this. The Bork selection/rejection was a recent manifestation of the wrong-headed Presidential notion that the President is automatically entitled to have his Supreme Court nominee confirmed as long as the nominee has no criminal record. I exaggerate, of course, and I don’t have a cite and I haven’t done the research, but my impression is that prior to Bork (and prior to Roe vs. Wade) (or at least prior to Nixon’s selection of Carsdale (sp?)), Presidents selected nominees that they knew, based on prior discussions and negotiations, would be palatable to the Senate. As Elendil’s Heir said, the selection of judges is always a political decision. Even if it is allegedly based on merit, it is political in the sense that politics decides who’s version/vision of merit comes into play.
I find Scalia a conundrum. On the one hand he appears to be brilliant, but on the other hand he bases much of his philosophy and rulings on empty rhetoric. The only way I can reconcile the two impressions is to weave them together in an extraordinarily tight fit of disingenuousness. That, however, does not *quite *work, but my only other choice is outright delusion.
Define:
[ul]
[li]Due Process[/li][li]Unreasonable search[/li][li]Equal protection[/li][li]Speech[/li][/ul]
Such that a collection of two hundred or so reasonably intelligent judges would all reach the same conclusion of any case that could come before them now or in the future.
I realize these are American terms of art, but the point should still come through. The supposition that in its interpretive capacity the judiciary is not part of the law-making process suggests that their role could be adequately filled by another party. This is not the case under our current system, and I do not believe one–one that could be considered by fairly modern audiences as remotely fair or just–has ever existed.
Perhaps cultural differences are coming in. By create law I mean infer things which are not there. Something like what happened with the US Fourth Amendment, no seach without cause, became extended through *Katz *to include privacy; personal privacy. Defining unreasonable search orders broadly to restrict government interfereance is one thing. Using the phrase to read whole new rights; is not and leads to problems in a common law country because of the very fact of precedent, the incorrect law is perpetuated.
I don’t think the proper dichotomy is political selection vs. non-political selection. It is openly political selection vs. covertly political selection. There is no set of nonpolitical factors upon which to rely in appointing Supreme Court Justices. Even seemingly apolitical factors reflect implicit value judgments. In the extreme case, where the system just elevates judges by seniority, you’re making implicit decisions about a whole host of factors when you put that system into place, some of which can fairly be called political. And, of course, this just means the initial appointment of judges at the bottom level becomes the level at which more explicit politics are considered.
There might be a spectrum of degree, sure. Bork might represent one extreme, but I don’t think his (non)appointment is different in kind from every appointment–it was just more explicit.
In the US, legal realism, at least in its weakest form, is pretty much an accepted truth. Legal realism states that there is no such thing as discoverable objective law that determines the outcome of every case. Some outcomes will always be close calls, the results of biases. These biases need not fall along some political spectrum. The bias might be to side with the government, or the defendant, regardless of the politics of the question. But they are almost always political in a given context (a bias of siding with the government in a political environment with a stable center-right tilt is functionally a center-right political bias).
Thus, legal realism suggests that its actually better to discuss a judges biases out in the open during the confirmation process, even if they are discussed in terms of overall jurisprudential methods. At least that way the biases are subject to some democratic controls.
[I meant to add that comparing SCOTUS to the House of Lords is very difficult. The existence of Marbury-style judicial review makes the whole picture very different.]
Right, but can a law be written such that everything is there? There is the obvious claim that if something is missing then legislative processes are the proper venue, but this would result in a rather Draconian system where justice is delayed to the vanishing point.
Note that in our system (sorry I can’t be more worldly), much of the judge-made-law bugaboo is actually judicial interpretations of legislation. That is, aside from weighing in on Constitutional rights and protections, many opinions deal with interpretations of legislation – which means that Congress could effectively override any decision they do not agree with. That this is relatively rare should bolster the notion that relying on Congress to pass all the laws that are needed is not viable.
Not, mind you, that judges should be completely unrestrained. Just because Scalia’s view is not founded on solid principles does not mean that the opposite is a good philosophy. As mentioned earlier, I had Barak leanings earlier on because I thought he would, independently of his political leanings, appoint the most able minds to the court. I agree with the central notion that injecting politics into the judiciary is a bad thing.
As I said, creating a right of privacy, which did not exist, is more than just “interpretation”. At least according to the English legal system. Again, cultural differences.
The same is true in American law: Statutory (legislature-made) law trumps common (judge-made) law.
The difference is that statutory law is, in turn, subservient to the Constitution. The constitution trumps statutory law.
This is not a “cultural” difference. It is a difference in the legal systems in question.
The Constitution cannot be read like a statute. The Constitution is a set of broadly worded principles, which must be interpreted by the courts in specific instances.
Your conclusion that the court “created” a right of privacy that did not previously exist, really amounts to nothing more than a political opinion. It’s no more legally pure than the conclusion that the Constitution, taken as a whole, implies a right of privacy.
^
Could very well be the case, having no written constitution, I am not as versed in constitutional jurisprudence as you would be.
That is genius? I think that is pettifogging crap. It doesn’t analyze the issue of whether the law requires a golf tournament that falls within anti-discrimination laws not discriminate, it rather bemoans that it does. Well boo fucking hoo! Most lawsuits someone wins and someone loses and the future is affected. Does Congress have the power to demand that pro-golfers with handicaps be accommodated? Yes, they do, and it is the Court’s duty to uphold that law. If it offends Scalia’s personal hatred to America/the handicapped/progress/liberals or whatever, that isn’t the point. The point is whether Congress has the power to do so and if it did so.
The only opinion of the USSC I have read in full (with all dissents) since Scalia was seated many years ago was Bush v. Gore, and Scalia’s portion was the worst, most disingenuous opinion I have ever read. “This is our opinion but don’t use it as precedent” means even he thinks it is crap. Of the many clippings of his opinions I have read, including the golf one above, I am unpersuaded that he is anything more than a bully in writing, although usually an artful one. Frankly Christopher Hitchens is much better at being an artful bully than than Scalia. Sarcasm might make Judge Judy popular, but I will settle for a boring judge with a smaller ego any day.
Roe v. Wade discusses exactly how it exists in the US via 3rd, 4th, 5th and 9th amendments and traces its application. I can’t speak to the issue of whether it existed in England, but it certainly existed in the US since the 1989 Bill of Rights.
As noted they did not “create” a right to privacy in the constitution. While it is debated just how far the constitution goes in protecting privacy the notion that it is there goes way back before Roe.
So…I take it you didn’t look up the case and read any more than the snippet I quoted? Because he actually disagrees with the majority conclusion (in hilarious fashion) that the ADA applies to the rules of a professional sporting event. What he’s bemoaning is that the majority concluded otherwise.
What changes would transpire, if say only appeals court judges, were elevated on the basis of say seniority and area.
I concur, but the politicalization of SCOTUS started with FDR’s court-packing scheme. Roosevelt was able to get the Justices to change their mind on the ICC and contitutionalized the New Deal. After that, Supreme Court appointments were made to further the President’s political agenda rather than getting the best jurists on the bench.
Note also that current Justices seem to be hanging on to their seats in order to survive administrations they don’t agree with politically. Wonder if that is more prevalent now?
All federal judges are political appointments. The process was meant to be political.
And what do you mean by “area”?
Geographical area. Most UK judges come via the High Court, and were until 3 years ago appointed from the ranks of senior barristers and were political appointees as well. It would dilute the politicisation I think if it was at one point, not every layer.
Generally speaking, U.S. district court judges are appointed from the region encompassed by the district in question and U.S. appeals court judges are appointed from the district courts encompassed by the circuit in question. I don’t really see, though, how geographical region has much relevance for the Supreme Court.
Pretty much all American judges are political in one way or another – there might be an exception for some state judges, but for the states I’m most familiar with, judges are actually chosen by popular election. American judges – like sheriffs – have by and large never been part of a neutral civil service. In fact, the notion of a neutral civil service is much more limited in the United States than it is in Britain.
AK, I’m left wondering exactly what the problem is you’re trying to solve with your proposed solutions. Is it that the Supreme Court is political in nature? Our system is set up to have three co-equal political branches that are supposed to assert their own authority and, as a result, limit the exercise of power by the other branches. It’s the whole point.
In Britain, the sole political body is the Parliament (headed by the prime minister and cabinet). That’s not the intent of our government. We don’t want the Congress or the president to have superior political authority over the judiciary. We want all three branches struggling to prevent each other from exceeding their authority.
If you cripple the judiciary, then you’re tampering with the basic structure of the system. As it is, the last eight years have shown us how dangerous it is for the judiciary and the legislature to cede too much power to the executive. At least now there is still a chance for the other branches to try to seize back that power and reinstate limits on executive power. I think the last thing we need is to weaken one of the three branches by removing its freedom to exercise its political power.