“A foolish consistency is the hobgoblin of little minds,” said Ralph Waldo Emerson. No hobgoblinry at the New York Times, and no consistency, foolish or otherwise, either. In an Editorial of October 11th (The Navy, Whales and the Court), the Times has come out against the U.S. Navy’s position in the Winter case (see preceding post) and insists that judges, those wonderful folks many of whom come from non-technical backgrounds and don’t know a binnacle from a barnacle or a ping from a pong, are perfectly competent to pass judgment on anti-submarine warfare techniques, and to decide whether, in light of environmental legislation, the U.S. Navy must shut down its sonar when its operation might upset the whales, even though there are times when an enemy submarine is taking advatage of underwater temperature layers to avoid detection, and lurking in those layers happens to be the whales’ favorite pastime.
Federal judges, says the Times, regularly pass on a variety of technical matters without deference to the judgment of the government’s technical decision-makers. That’s the way of the law, so what’s all this judicial deference jazz all of a sudden?
However, the editorialists at the Times seem to have short memories. It was only three years ago, on June 24, 2005, that the Times came out in favor of redeveloper robber barons in the Kelo case. There, the Times saw nothing wrong with judicial deference, giving cities “wide discretion to determine whether a taking of property meets [the constitutional] standard [of ‘public use’]” and allowing those cities to engage in a do-it-yourself process of constitutional review. This in spite of the fact that what was (or should have been) before the court in Kelo was a matter of constitutional interpretation as opposed to mere statuory construction as in Wnter.
So the bottom line appears to be that by the Times’ lights, judges must defer to any one-horse village’s self-serving determination that taking the land of others and giving it to a favored redeveloper who thinks he can build a private business on it and make oodles of money, some of which may (or may not) trickle down to the community, meets the constitutional “public use” standard with no effective review by the courts. But the same judges are free, indeed obliged, to overrule the considered judgment of military experts on highly technical matters of undersea warfare and the needs of national defense, and must not defer to them.
It seems to us that the Times is confusing ideologically-motivated result orientation with law. Worse, the Times is exhibiting the sort of alienation from the values of a society that has nurtured it and conferred upon it an unprecedented degree of influence and power — a kind of alienation that we have come to expect from the New Left.
Last but not least, a word on journalistic semantics. If you read that editorial you may notice that there is no federal government — there is only “the Bush administration,” and surely you must know that whatever the “Bush adminitration” wants has to be wrong — even if what it wants is to protect you from getting nuked.