Faith, Beer, and Other Things That Interest Geoff

Philly Inquirer Columnist Tries Hand at Judges Debate and Fails

Most of the columnists at the Philadelphia Inquirer seem well-meaning. Unfortunately, their in-house arguments tend to be incredibly weak. On the plus-side, their Sunday edition has a lot of money-saving coupons.

Chris Satullo, this past Sunday, tried his hand at talking about the judiciary. The results of his attempt are painful to read.

It would be funny - were the damage to the republic not so great. Congress has talked itself into a tight corner. The only way out is to stop playing spin-the-villain and start seeking the right goal: a balanced and independent judiciary.

Mr. Satullo is going to go on to define "balanced and independent". "Balance" will mean conservatives, liberals, and moderates on the judicial bench. "Independent" will mean that no checks and balances will be applied to judicial decisions.

Why not just vote up or down on the nominees and be done with it?
That sounds reasonable, but it's not. The yelling about rules and procedure obscures two key points:
First, the Republicans have changed the arcane rules of senatorial privilege that they exploited with gusto to block Bill Clinton's nominees. Messy filibuster is the main tool the Dems have left if they are to resist what George W. Bush and conservative activists are up to.

Ok, first thing's first. Clinton had a lot of last-minute appointments that the Republicans rightly bottled up. There were a lot of judges who died in committee, but Frist's proposal to change Senate rules would prevent that in the future.
Mr. Satullo seems to be unaware of this.

And that's Point Two: The activists' agenda became clear during the anguish of Terri Schiavo and her family. They don't want an independent judiciary if that means judges will occasionally tell them that the law and the Constitution do not say what they'd like them to say. To them, an "activist" judge is any judge who decides a case in a way they don't like.

This is where Mr. Satullo is trying to raise my blood pressure. He assumes things about my thinking and the thinking of other conservatives that he absolutely should not.

Not to rehash the Schiavo case, but was infuriating was that Congress' perfectly constitutional law to give federal courts a de novo review was declared unconstitutional. It was declared unconstitutional by the judge, not on the basis of any sound legal reasoning. It was declared unconstitutional because Congress had the temerity to give guidelines (under Article 3 their right) to the court and force the court to review it. Please note that Congress did not tell the federal court how to rule.

Like FDR before him, this president seeks a judiciary that will rubber-stamp his agenda. Bush is candid, give him that. He makes clear that he'd like to fill the federal bench with jurists like Supreme Court Justice Antonin Scalia. He's drawing nominees from a school of legal thought that considers much of what the courts and Congress have done in the last century to regulate business, protect workers and the environment, pursue social goals, and expand civil rights to be wrong, i.e. unconstitutional.
Claiming to hate "judicial activism," these legal scholars itch to take a wrecking ball to decades of legal precedent and lawmaking.

At this point in the article, it becomes apparent that either Mr. Satullo is not in dialogue with anyone he opposes on this issue or he is not listening.

What we want is for legislating to be left to legislatures. What a radical idea!
What "courts have done to regulate business, etc."? That's not their job. Their job is to take the law and interpret it.
Scalia has consistently said if you want something, pass a law. It is hard to get through Mr. Sartullo's muddled thinking to know exactly what he means by "unconstitutional." But I assume he is referring to race-based policies our government has. Judicially, the main problem conservatives would have with that is the 14th amendment. But Mr. Sartullo seems oblivious to any nuanced legal arguments we may have.

We just think they are judicial activists because we disagree with them. Not because they are ignoring the Constitution and avoiding the legislature.

Congressional Democrats haven't done much useful for the nation lately, but if they can thwart this radical (in the truest sense of the word) takeover of the courts, that would do the republic a service.
I could talk a lot about how this high-test version of "strict constructionism" shares many habits of mind with the Christian fundamentalism with which it has lately made common cause.

If Mr. Sartullo means that Christian fundamentalists think the Bible should be interpreted according to the rules grammar and historical background (what words meant when they were written) instead of bringing outside ideas to change the meaning of Scripture and strict constructionists don't think the Constitution can mean anything you want, he actually he has a good insight. But somehow I think the invocation of "Christian fundamentalists" is an attempt to poison the well. How many of his readers are associating this with the "radical idea" aren't alive and actually mean something according to what the authors intended?

But I won't. Instead, I think I have a useful suggestion, one that could get the partisans of Capitol Hill out of the ugly box they've made for themselves.
Here's my moderate proposal:
Step 1. Everyone, be honest: You really do care about what judges believe, and you judge them on that basis. It's OK. We all do. Let's just admit it and drop any remaining pretense that debates over nominees are supposed to be only about their character and credentials. That pretense has created a vicious cycle of character assassination and payback, with nominees as victims. Let's stop it.

That's actually a good idea. I'm trying to think of all the times conservatives have used character assassination against judicial nominees in the last 30 years. I'm coming up with the following number: 0.

Step 2. Instead, let's accept that this is a big, diverse nation and everyone within its mainstream deserves to have their thinking represented on the federal bench. The value of balance is the secret lesson of the Rehnquist court. Despite all the moments it has made you wince, this really has been an OK court, unpredictable and independent. Its strength? It has a couple of members on the right, a couple on the left, and a core of swing voters whom those on the margins must persuade. This stirs intellectual juices, demands compromise, and nudges the court to decide cases carefully on the facts.
In other words, every court should have a Scalia, a brilliant, pugnacious radical conservative view. Every court should have a dogged liberal like Ruth Bader Ginsburg. But a court consisting entirely of Scalias, or entirely of Ginsburgs, would not be good.
If balance and independence joined intellect and integrity as the ruling principles for judging judges, that would change the questions asked about a nominee. No longer: Does he agree with me on Roe v. Wade? If not, what dirt can I whip up on him? Instead: For what court? Replacing whom? Would that keep that bench balanced, or push it out of whack?
If a nominee risks tilting a given court too far, you can reject her respectfully on that basis, without needing to paint her as evil.

This is why we have presidential elections. The time to decide what kind of judges you want is then. I assume that a Democratic president is going to nominate jurists who have little respect for the integrity of the text of the Constitution. If the election is lost, I'm willing to live with it.

But yes, let's have a bench made up of people who think the Constitution means something, people who will twist it every which way, and a third bunch which is judicially schizophrenic.

Right now, despite the reckless conservative attacks on the judiciary, the courts already tilt strongly that way. Republican appointees are in the majority, on 11 out of 13 circuit courts. Clearly, what the radicals want is to tip the courts totally their way.
The idea of a balanced court is, in a sense, a free-market vision of how courts should work. You'd think people who call themselves conservatives would favor that. Instead, they want a monopoly.

No, us reckless conservatives want to allow legislatures to legislate and we want our judges to respect the Constitution. We also want checks and balances on the decisions of the judiciary so they are accountable like the Founding Fathers intended. Checks and balances doesn't make the judiciary less than independent. Is the legislature independent from the judiciary and the executive even though laws can be declared unconstitutional or legislation be vetoed?

A word to the Philadelphia Inquirer: if you are interested in a columnist who can argue effectively and coherently, I'm willing to freelance. You need it. No offense to Mr. Sartullo, who is the Editorial Editor.