Friday, July 01, 2005

How O'Conner Should Be Remembered
his snippet, from an AP story on Justice O'Connor's retirement, may be the perfect summation of the futility of her reign (and it has been a "reign") on the Supreme Court:

Perhaps the best example of her influence [because of her "swing vote"] is the court's evolving stance on abortion. She distanced herself both from her three most conservative colleagues, who say there is no constitutional underpinning for a right to abortion, and from more liberal justices for whom the right is a given.

For liberals, this sort of wishy-washiness gives the illusion of depth. In reality, it is a dangerous combination of superficiality and narcissism.

Notice what it says above: she distanced herself from those who said there is no constitutional underpinning for a right to abortion and from those who said there is. Bill Clinton fans love to call this "nuance," but a better word for it is "nonsense." Either the right is in the Constitution or it isn't. If it's not there, the conservatives are right. If it is there, the liberals are right. But to say "maybe it is, maybe it isn't" is judicial cowardice. There's no middle ground between "is" and "isn't," despite O'Connor's flailing attempts to stake one out. That's why I actually have more respect for the consistent Court liberals like Stevens and Ginsburg than I do for O'Connor and her twin Anthony Kennedy. The liberals may be consistently wrong, but at least they've done the hard work of putting together something of a judicial philosophy.

Ultimately, history will view O'Connor as a rudderless ship upon stormy waters. Her jurisprudential legacy will be that she had no real jurisprudence. She had no compass, no substantive philosophy of law to ultimately guide her other than her own shifting personal opinion du jour--an opinion she held in such high esteem she was willing to impose it on the rest of us by fiat.

Back when I was a moderate (granted, a long time ago) I took a selfish pride in being a moderate. I'm not like those two groups on either extreme. But sometimes, as John Rabe notes, if you don't have an opinion on something you aren't deep. You've replaced a strong view with muddled thinking. It is intellectually honest for some people to say "I don't know." I would hope those people, when applied to the judicial realm, would leave that kind of stuff to legislatures.

I will need to say this a hundred times between now and October. Most conservatives don't want a judge who imposes conservative views as opposed to current judges who impose liberal views. We want legislatures to legislate. Hard issues should be fought at the ballot box.

"But sometimes, as John Rabe notes, if you don't have an opinion on something you aren't deep. You've replaced a strong view with muddled thinking."

I've always disagreed with that reasoning. I consider myself a moderate, but it's not beacuse I am wishy washy. I just like one side's view on one issue and the other on another. I think it's independent thinking. Heaven forbid if a politician actually votes with his conscience instead of the party line. The best politicians are those with guts who don't care what their party thinks about how they vote.

Well, it is intellectually honest to say "I don't know". And I made sure to say "sometimes." What O'Connor did was say "I don't know" and go ahead and make decisions.

A moderate could be have a mixture of different views on a variety of things which puts them in the middle. But if you have only two choices on a particular matter: abortion is a constitutional right or isn't...and you procede to say it is somewhere in between like O'Connor did.Intellectually, there is confusion there, not deepness of thought. The original Roe v. Wade decision was an example of sloppy thinking. Babies have different amounts of rights depending on what trimester they're in? With no cogent reason given for trimesters allowing for differeing rights?

Someone could be pro-life and economically liberal. That's different.
I see what you're saying...Chris
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