It's the Judicial Philosophy Stupid...
The punchline from the Clinton election in 1992 was "It's the Economy Stupid." Which was meant to highlight Bush Sr.'s purported ineptitude regarding Domestic issues...
Well with regard to the upcoming Supreme Court battles, we should remember that "It’s the Judicial philosophy stupid” as opposed to political ideology.
As the ripples of the Sandra Day O'Connor's resignation continue to inspire debate and discussion, it is important to make one thing clear. Most media commentators are speaking in terms of "liberal" versus "conservative" nominees. These terms serve only to confuse not clarify the issue. These terms most commonly refers to the policy preferences of potential nominees on key issues or in other words it refers to their political ideology. These terms do not translate well into the area of Constitutional philosophy. The terms "liberal" and "conservative" are often used as shorthand for judicial philosophy because the nuance of jurisprudence is so varied and often confusing.
Perhaps some more useful terms might be between "activists" and "trustees". Activists, (whether liberal or conservative) would see their role as a justice to actively pursue their policy preferences, or their vision of a just society from the bench, sometimes at the expense of the Constitution. A trustee would see their role as to preserve the authority of the Constitution by putting their notions of justice or their policy preferences aside in order to simply interpret the Constitutional text as faithfully as possible. Sometimes these judges are called "originalists," "strict Constructionists," or "textualists." I advocate the term trustee because it focuses on their primary responsibility which is to preserve the Constitution and faithfully interpret it. Originalism or strict constructionism merely serve as the best means of achieving the end of preserving our written Constitution.
Activists put the preservation of a written Constitution behind the immediate need to pursue a given vision of justice, or the wisest policy in a given case. Their activist posture may come from a good heart or benign motives, but by ignoring or glossing over the authority of the Constitutional text they do more long term harm than short term good. Ultimately they undermine the ability of a sovereign people to constrain their government by outlining Constitutional boundaries in a written text.
Thus, I simply do not want a conservative justice appointed...I want a "trustee"...someone who sees the job of Supreme Court Justice as the guardian of a public trust with that trust being the United States Constitution. I want them to see their sole function as a Justice to preserve and protect the Constitution during their tenure. This will not ensure they will always make the right decision, but it will go a long way in preventing them from intentionally making the wrong decision merely because they don't like the outcome dictated by a plain reading of the Constitution's text.
In the end, our focus should be on their judicial philosophy and not their political ideology.
There is much more to be said on this issue and I am sure the coming weeks will provide ample time to comment…
Well with regard to the upcoming Supreme Court battles, we should remember that "It’s the Judicial philosophy stupid” as opposed to political ideology.
As the ripples of the Sandra Day O'Connor's resignation continue to inspire debate and discussion, it is important to make one thing clear. Most media commentators are speaking in terms of "liberal" versus "conservative" nominees. These terms serve only to confuse not clarify the issue. These terms most commonly refers to the policy preferences of potential nominees on key issues or in other words it refers to their political ideology. These terms do not translate well into the area of Constitutional philosophy. The terms "liberal" and "conservative" are often used as shorthand for judicial philosophy because the nuance of jurisprudence is so varied and often confusing.
Perhaps some more useful terms might be between "activists" and "trustees". Activists, (whether liberal or conservative) would see their role as a justice to actively pursue their policy preferences, or their vision of a just society from the bench, sometimes at the expense of the Constitution. A trustee would see their role as to preserve the authority of the Constitution by putting their notions of justice or their policy preferences aside in order to simply interpret the Constitutional text as faithfully as possible. Sometimes these judges are called "originalists," "strict Constructionists," or "textualists." I advocate the term trustee because it focuses on their primary responsibility which is to preserve the Constitution and faithfully interpret it. Originalism or strict constructionism merely serve as the best means of achieving the end of preserving our written Constitution.
Activists put the preservation of a written Constitution behind the immediate need to pursue a given vision of justice, or the wisest policy in a given case. Their activist posture may come from a good heart or benign motives, but by ignoring or glossing over the authority of the Constitutional text they do more long term harm than short term good. Ultimately they undermine the ability of a sovereign people to constrain their government by outlining Constitutional boundaries in a written text.
Thus, I simply do not want a conservative justice appointed...I want a "trustee"...someone who sees the job of Supreme Court Justice as the guardian of a public trust with that trust being the United States Constitution. I want them to see their sole function as a Justice to preserve and protect the Constitution during their tenure. This will not ensure they will always make the right decision, but it will go a long way in preventing them from intentionally making the wrong decision merely because they don't like the outcome dictated by a plain reading of the Constitution's text.
In the end, our focus should be on their judicial philosophy and not their political ideology.
There is much more to be said on this issue and I am sure the coming weeks will provide ample time to comment…
posted by Lil' Mermaid | 9:59 AM
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