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September 12, 2008

Who Gets To Decide What's "Fair"?

Isn't this interesting:

During his acceptance speech last night at the Republican National Convention in Minnesota, John McCain told the audience, “We believe in a strong defense, work, faith, service, a culture of life, personal responsibility, the rule of law, and judges who dispense justice impartially and don't legislate from the bench.” Most American voters (60%) agree and say the Supreme Court should make decisions based on what is written in the constitution, while 30% say rulings should be guided on the judge’s sense of fairness and justice. The number who agree with McCain is up from 55% in August.

While 82% of voters who support McCain believe the justices should rule on what is in the Constitution, just 29% of Barack Obama’s supporters agree. Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness, while nearly half (49%) of Obama supporters agree.

In terms of how the Supreme Court currently makes decisions, just 42% of voters think the justices rule from what is in the Constitution. Thirty-percent (30%) say they are guided by a sense of fairness and justice. Democrats are more likely than Republicans and unaffiliated voters to believe the justices base rulings on the Constitution.

Question for the ages: if Supreme Court justices throw out what the Constitution has to say when formulating rulings and substitute their individual sense of "fairness", then aren't they substituting their individual policy preferences for those of our duly elected leaders in the state and federal legislatures?

Isn't this anti-democratic? Since Supreme Court decisions can't be overruled by a higher court and become, in fact, nearly irreversible precedent for future decisions, aren't justices who rule in this fashion in effect amending the Constitution by judicial fiat? Aren't they doing an end run around the procedures outlined for ratifying amendments by the States? What if, in the case of the recent decision on child rape, it turns out the majority made factual errors?

Jeff Rosen points out that the Obama/Biden ticket offers vastly superior "expertise" in Constitutional law:

The Obama-Biden slate is historic in many ways, but for law professors it has a special cachet: It's the first time that professors of constitutional law have occupied both slots on a ticket. Barack Obama was a senior lecturer at the University of Chicago Law School, and Joe Biden has been an adjunct professor at Widener University School of Law since 1991. More to the point, it's the most civil-libertarian ticket ever fielded by a major U.S. political party.

Yesterday I observed that this election is an historic one:

This election is unusual because for the first time I can remember we have four candidates who, by conventional standards, have few of the usual qualifications for office.

I think that’s a sign. It’s a sign of anomie, very much like what this nation experienced after World War I; of fatigue and disenchantment with forces we don’t fully understand; with too many factors that defy our attempts to analyze or explain them rationally. And so we fall back on something we think we can trust: our intuition, our gut instincts. We want leaders who are like us. We want someone we think we can trust to make the right decisions.

It is striking that in an election where trust is likely to prove the decisive factor, the candidates with the most experience with Constitutional law are the ones whose supporters don't believe Supreme Court justices have any real duty to uphold the Constitution, (which, after all, is their sworn duty) but ought to feel free to bring in their personal feelings. It is perhaps not surprising, then, that this view is shared by the candidate himself:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges

- Barack Obama

Much has been made of Governor Palin's experience (or the lack thereof). I think it's also wise to look at what the candidates are promising to do, whether they have any track record of delivering what they promise, and whether they can be taken at their word.

via Bench Memos.

Posted by Cassandra at September 12, 2008 08:00 AM

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Comments

Isn't this anti-democratic? Since Supreme Court decisions can't be overruled by a higher court and become, in fact, nearly irreversible precedent for future decisions, aren't justices who rule in this fashion in effect amending the Constitution by judicial fiat? Aren't they doing an end run around the procedures outlined for ratifying amendments by the States?

Well, yes, obviously. But remember, in the minds of the folks who support that idea, you can't depend on the people to choose the 'right' elected officials. To them, we (the dumb voters) will put a "moron" like George W. Bush in office, so clearly, we're not to be trusted with matters as important as modifying the Constitution. Therefore, they need to put the 'right' Justices on the SCOTUS to protect us from ourselves.

But see, I don't think they're EVIL for wanting to do that. Misguided, elitist, and condescending, absolutely. But not evil. And that's my problem with the political climate on the internet. Folks (on both sides) are not merely disagreeing with each other, they're attributing policy differences to brain damage or outright evil.

Posted by: MikeD at September 12, 2008 12:22 PM

I used to think that there was plenty of room in our society to debate the various theories of constitutional interpretation without hitting the other guy over the head with a rock.

After that, I stopped thinking.

Posted by: spd rdr at September 12, 2008 02:52 PM

The future selection of Supreme Court Justices is one of the most important reasons to not vote for Obama.

Posted by: camojack at September 12, 2008 05:07 PM

Heathen idolater! Of COURSE it is necessary to hit the other guy (or woman) over the head with a rock! It says so right in Surah 15:47! The entire basis of our culture and religion is founded upon death and dismemberment of non-believers, infidels, blaspheming heretics, and people who look at us funny! Jihad! Jihaaadd!! Kill! Kill! KIIILLLL!

You, as benighted infidels, ask who will decide? Why I, as a mullah, will decide, of course! It is like a big game of "Simon sez" started by the Prophet Mohammed (pbuh). We like to call it "Omar sez". "Simon" sounds too Jewy.

Anyway, when Mullah Omar sez "jump", all believers jump! When Mullah Omar sez "Kill!", all believers kill. If jihadi jump when no Mullah Omar say "jump", then is miscreant stoned to death as is pleasing in the eyes of Allah. Is no thinking required, only obedience. Is just like Democrat Party (well, like Party after we slaughter all gays and uppitty women).

Also have many other fun games like weekly "Beat your wife day", "Hot Falafel" (like Hot potato, but played with plastic explosives), and get mob of angry male relatives for "Kill your dishonorable daughter" stonings (she let a lock of hair show from her chador, the whore). See, muslims know how to good time have!

-- Mullah Omar Abdullah Saladin bin Sadr

Posted by: a former european at September 12, 2008 05:11 PM

Oh c'mon, AFE! It's Friday! Rather than stirring up nonsense that in years' past might have made you a suite-mate with Solzhenitsyn in a place that, eh..... you wouldn't like so much....Wouldn't you rather just have a beer with a friend? Of course you would!

Putin, who has taken a robust stance on Russia's conflict with Georgia over the South Ossetia region, blamed Washington rather than Moscow for resurrecting Soviet-style rhetoric.

"Today there are no ideological contradictions. There is no basis for a Cold War," Putin told a group of reporters at a three-hour lunch briefing at his retreat in the Black Sea resort of Sochi.

"There is no basis for mutual animosity ... Russia has no imperialist ambitions," he said.

See? "Russia has no imperialist ambitions!" Putin said it himself!

At the risk of being rude to my hostess, and with personal apologies to all, may I at least ask this simple question [*edited*, for the children]:

When the ***** hell* are you people going to wake the ***** hell* up?

Posted by: spd rdr at September 12, 2008 06:47 PM

"Today there are no ideological contradictions. There is no basis for a Cold War,"

Damn straight. Any war will end with 5 hits from a MIRV, period.

After that, somebody is going to give up.

Posted by: Ymarsakar at September 12, 2008 09:51 PM

It's already happened. Ruth Bader Ginsberg was the lead on the Kelso decision that ruled private property could be seized by the government for private, as well as public, purposes. I don't think people yet understand the enormity of this decision.

It goes against all the founding principles that undergird this country, and arguably the most important at the time -- the right to private property, and the right to keep the fruits of your labor without excessive taxation. With the King owning individuals, their land, and their bounty, you could even say the right to call their land their own was what spurred the founders to action. Not an accident that the subsequent "American dream" revolved around one day having your own little house, and your own little plot of American land.

But Kelso basically says, we own nothing. Nothing is truly yours. The government can take it, anytime, anywhere. This emanated from the "sense of fairness" of the extremist left, which was able to upend that constitutional principle and replace it with their own notions of fairness, which happen to be anathema to both the spirit and the letter of the constitution.

Posted by: jordan at September 13, 2008 11:31 PM

> Just 11% of McCain supporters say judges should rule based on the judge’s sense of fairness

As discussed in the very extensive commentary in the thread a while back on Jury Nullification, it's not the judge's purpose to dispense fairness, really.

The judge is there to rule on The Law. It's the JURY'S purpose to, among other things, rule on the fairness of the application of the Laws in question.

The jury sets no precedent. The judge does. Thee purpose of precedent is to provide a measure of consistency to the definitions of The Law.

Posted by: Obloodyhell at September 14, 2008 02:46 AM

> whether they can be taken at their word

I think it's safe to say that Obama can't begin to be taken at his word on ANYTHING. He's clearly made massive shifts in his supposed positions since he got the votes for the nom, as he attempts to reposition himself as appearing "centrist", despite his obvious voting record.

To paraphrase Richard Pryor:
Which are you going to believe? His speeches or those damn lying votes?

Posted by: Obloodyhell at September 14, 2008 02:50 AM

Spd, you just made the list, buddy! Allah curse you for a vowelless heretic! Beer is forbidden to the Faithful, as is that bacon you keep trying to foist upon me! Your time will come, infidel!

Will leave comments on Putin for famous "Ask Oleg" program.

-- Mullah Omar Abdullah Saladin bin Sadr

Posted by: a former european at September 14, 2008 03:52 AM

I think Jordan's point is an excellent one.

Posted by: Grim at September 14, 2008 11:36 AM

"I think Jordan's point is an excellent one."
It sure is... That decision went 5-4 IIRC.

Isn't this where usual suspects are called into the line up?

Posted by: Keyser Söze at September 14, 2008 12:30 PM

"I think Jordan's point is an excellent one."

I am consistently humbled by the way commenters continue to ensmarten me :)

"That decision went 5-4...Isn't this where usual suspects are called into the line up?"

This is where I feel compelled to be tiresome and elaborate a point of which many of you are, no doubt, already aware but upon which we are frequently misled by the lamestream media :p

Majority by: Stevens
Joined by: Kennedy, Souter, Ginsburg, Breyer
Concurrence by: Kennedy


Dissent by: O'Connor
Joined by: Rehnquist, Scalia, Thomas
Dissent by: Thomas

Posted by: Cass at September 14, 2008 12:42 PM

Just goes to show that one person's usual suspect is another person's flaming %$@*!^+ progressive... wait... oh, well something along those lines. :-)

Posted by: Keyser Söze at September 14, 2008 01:01 PM

Kelso vs. New London? I thought that decision was done on the basis of what was fair for corporations. IOW, more corporate welfare.

Jordon, you are absolutely correct, I was being sarcastic.

spd, I have often wondered about the quietude of the former Soviet Union and when they were going to start annexing their former bloc countries back.

Posted by: Cricket at September 14, 2008 01:38 PM

The judge is the strong man. We all know how the Left loves strongmen.

They get things done, people.

A mob of jurors? Ah... so messed up. So uncouth. So inefficient. So Republican.

Posted by: Ymarsakar at September 14, 2008 05:27 PM

Strongmen also make the trains run on time! Duce, Duce!

Posted by: a former european at September 14, 2008 09:47 PM


It don't take a genius to spot a goat in a flock of sheep!!!

Posted by: Gator at September 14, 2008 11:10 PM

Separating the sheep from the goats, Gator?

Posted by: Grim at September 14, 2008 11:23 PM

Sheep go to heaven, goats go to hell.

Posted by: MikeD at September 15, 2008 11:19 AM

Many parts of the Constitution are vague; in fact, it was a result of compromises and shortly after its ratification, people argued that it gave implied powers to the government. The Ninth Amendment said that the rights listed in the Constitution weren't the only ones you have (supporting the idea of implied rights and principles), yet some people ignore this.
Majorities of people often have disregarded the rights of minorities, who should have some recourse; since the Constitution is the highest law of the land, it (and what it implies) should trump the will of present majorities.
Any interpretation or decision sets precedent; the Supreme Court does have power but so do the other branches, and they're all related and connected to each other (President nominates and the Senate confirms). Politicians should give judicial nominees should be given thorough and tough hearings rather than express shock later on.

Posted by: Andrew Suarez-Grigsby at March 22, 2009 03:02 PM

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