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June 19, 2005

For All Your Jeff Rosen Bashing Needs...

In rode the Lord of the Nazgul... - JRR Tolkein, Return of the King

When last we saw the good Professor, he was busily saving Middle Earth America from that arch-fiend Clarence Thomas, now revealed in all his hideous majesty as the foul mastermind behind the Constitution-in-Exile conspiracy.

For those of you who came late to this party, the CIE is a dastardly neoconservative plot so arcane and conspiratorial that the rank-and-file go about their daily business blissfully unaware they belong to it! This strikes the HVES as almost unbearably clever; at once rendering it impossible for members to betray each other's identities while simultaneously preventing them from coordinating their efforts. Thus, the plot shuffles along dutifully for decades, never quite accomplishing anything yet never really disbanding either (how would they notify everyone?).

Right-thinking law professors, seeing the conspiracy's notable lack of success, are lulled into a false sense of security leaving only poor Jeff Rosen to guard the citadel. If only he were better at math.

Thursday we noted with some snarkasm that (at least in this universe) a plurality of 44% doth not a majority make, referring to the Quinnipiac University poll cited by Rosen.

In a post enticingly titled, "U 2 can B smart if U read The New York Times Magazine", Beldar notes with some asperity that Rosen is not as smart as he thinks he is:

Jeffrey Rosen sports degrees from Harvard, Oxford, and Yale, and he's a tenured Professor of Law at The George Washington University Law School. His short biography on that law school's website reveals that he's the legal affairs editor of The New Republic, and he's a contributor to The New York Times Magazine, The Atlantic Monthly, and The New Yorker (where he has been a staff writer). Clearly, this is a man so smart that he can choose to work and write only for institutions that include a capitalized indefinite\*/ article as part of their names. I almost feel like I should refer to him as "The Jeffrey Rosen."

He then proceeds to lesson The Jeffrey in basic math:

...lookie at Prof. Rosen's proof, friends and neighbors: not one, but two — two! — polls. One of them has a "plurality" — and that sure sounds to me like a bunch.
(I'd have looked up that word "plurality" on Google, but I got distracted by a sidebar in Prof. Rosen's article that quotes the results of another poll, this one by some outfit called Gallup, which sez that 16% of the public trusts the Supreme Court "a great deal," and 25% trust it "quite a lot." Another 38% trust it "some," sez this Gallup group. And 19% of Americans trust the Supreme Court "very little to none." This got me all confused into thinking that if you take five average Americans, two will give the Supreme Court a thumbs-up, and three won't. But I apologize for this diversion. Math isn't my strong suit, and certainly the clever editors of The New York Times Magazine wouldn't print a poll showing that the, umm, biggest single chunk (whatever that's called) of Americans only trust the Supreme Court "some" — certainly not in the very same article where Prof. Rosen has already proved that the Supreme Court and the whole danged American public are purty much exactly on the same wavelength.)

The HVES is beginning to think we should leave Rosen-bashing up to the professionals. We were gratified to see Andy McCarthy make our earlier point regarding the respective roles of Congress and the Courts:

More to the point, this particular reliance on poll numbers betrays how badly the Left misperceives the proper role of the Court. Congress is a political branch. Its performance, if it is performing well, should line up with the priorities of Americans because its job is to represent them – which means actuating their wishes or changing their wishes by persuasion if the members of Congress think the people are ill-informed on some issue or another. Further, because the U.S. has a vast, diverse population, it cannot be said to have a single, identifiable set of priorities – it instead has multiple, competing priorities. Viewed in that light, 32 percent priority-sharing may not be all that bad.

The Court, on the other hand, has a much different job. Its members are given life tenure precisely because interpreting the law is not a matter of thrusting a wet finger in the air to divine which way the popular winds are blowing. If a document like the Constitution or a statute says two plus two equals four, but the public (or, more likely, elite opinion) wants it to equal five, the Court’s job is not to shuck-and-jive to make five. It is to say: "The answer is four. If you want it to be five you need the people whose job that is – namely, the Congress which is supposed to be responsive to your desires – to change the document. Don't ask us judges to pretend it says something it doesn’t."

But this is hardly the Democrats first essay into innumeracy, nor the first time they're tried to fool the public with populist ("Mein Gott! they're thwarting the Will Of The People again!") rhetoric which deliberately ignores the structure laid out in the Constitution for our federal government. We recall with particular fondness the "b..b..but we represent more people than they do!" line of 'reasoning' used to justify the filibuster. Poor Joe Six-Pack was supposed to be outraged because Democratic senators represented more populous states even if the "unfair" structure of the Senate limited each state to two representatives, therefore turning a minority of 44 Senate Democrats into a "true" supermajority.

Hint for the clueless: there's a reason the Senate was set up that way.

CWCID to Bench Memos for the Beldar link.

Posted by Cassandra at June 19, 2005 05:55 AM

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