“Why Can’t We All Just Get Along?”

           You’ll have to forgive Dahlia Lithwick, senior editor at Slate. She, being a fully credentialed girl, just doesn’t understand what boys learn at an early age. Namely, that if you pick a fight with some plug-ugly, and he starts beating the daylights out of you, it is highly unlikely that he will desist if you ask him to be nice instead because it doesn’t matter who started the fight. It’s a guy thing. When a guy gets belted it’s not surprising that he tends to respond by saying, “You started this fight, and I’m going to finish it for you,” and then goes on and does just that – usually to the cheers of the audience. 

          Case in point, Ms. Lithwick’s op-ed piece in the Los Angeles Times (We Need Judges, Not Partisan Fights 3/8/09) which admonishes us to stop all that nasty, partisan quarreling about judicial appointments and let our new President do his thing. After all, that Blue Meanie, George W. Bush, got to appoint one-third of sitting federal judges, so now it’s the democrats’ turn. According to some Democrats, Ms. Lithwick tells us, the existing situation “requires strong medicine” with some of them calling for the appointment of “a small army of fiery, ideological judges.” 

           Ms. Lithwick’s call for peace in our time stresses that who started the fight over judges doesn’t matter. According to her, now is the time for everybody to play nice, and never mind that former Senator Barack H. Obama  voted against the confirmation of John Roberts who (whether you like his ideas or not) is about as well qualified a Supreme Court [Chief] Justice as we have seen in our lifetimes. And as for all that “borking” business, says Ms. Lithwick – that was then and this is now. And now that the Democrats have control of both the White House and the Senate it is time for bipartisanship and sweet reason. How convenient.

          Make no mistake, the sort of bitter partisanship that has become the norm in the judicial selection and nomination process in recent years is bad stuff. Judging and interpreting the law under which we must live is too important for that. Though there were no “good old days” for judicial selection, things have grown a lot worse lately – nastier, more overtly ideological and more partisan. But like it or not, sic friature crustum dulce, as the Romans used to say  — that’s how the cookie crumbles. This is only one application of the fundamental principle that ideas have consequences, and that once you set an ideological precedent you have to live with it. Telling free people “we can do it to you but you can’t respond in kind” is a sure-fire prescription for social strife, and by that we don’t mean just Senate filibusters. It was all explained to those of us who would listen, by the ancient Greek tale about Pandora’s box – once you crack open its lid and the nasties inside escape, there is no coaxing them back into the box.

           And so, it may not be inappropriate to remind our readers how this Pandora’s box was cracked open in the first place. It was the sainted FDR, the liberals’ iconic figure who planted the seed from which this nasty weed has grown. Remember your history. Recall that when faced with Supreme Court rulings striking down as unconstitutional his 1930s vintage New Deal legislation, FDR announced that unless the Supreme Court started ruling his way, he would pack the bench with additional Justices selected for their commitment to New Deal ideology, and thus gain judicial imprimatur for his legislation. It didn’t come to that. Faced with that threat, the mighty Supreme Court backed down, and started approving New Deal legislation. Still, though FDR did not have to go to the mat on that one, the idea of overtly shaping the bench specifically to further an ideological agenda gained a measure of respectability because now it became the stuff of presidential policy rather than the cry of rabble-rousing political extremists. We were taught all that in our high school history courses, with no one, to the best of our recollection, ever admonishing us that FDR was a Blue Meanie for thus tampering with the integrity of judicial decision-making. Mind you, we’d rather that none of that had happened. But nobody asked us. 

          Now it’s almost three-quarters of a century later, and by degrees the brave new way of picking judges has become routine: to seek out openly biased individuals as candidates for the bench, provided their biases match those of the appointing authority. Bummer. Still, if you are going to let judges set social policy, and find stuff in the constitution and statutes that no rational English-speaking person, untutored in lawyers’ mumbo-jumbo, can discern from reading these documents, and to make up stuff as they go along, you shouldn’t act surprised when the people who, after all, believe that they live in a democratically-based society, decide to take a hand in judicial selection on the seemingly sensible theory that if they can pick legislators who set policy and make laws for them to live by, they should also have a say in the selection of judges who are going to do exactly the same thing and then some. 

          The moral of it all: Judicial independence – a good thing – is inversely proportional to the extent of prevailing judicial activism. If you want a bench filled with judges who are out to make “social revolution” as California’s late Supreme Court Justice Mathew O. Tobriner once exhorted in the pages of the California State Bar Journal, you shouldn’t act surprised if the people on the short end of those revolutionary judicial rulings set out to make counter-revolution. 

            So it turns out in the end that as far as results are concerned, we are in harmony with Ms. Lithwick – give us bipartisanhip when it comes to judicial appointments any day. But not if the price of that bipartisanship is to find ourselves ruled by that “army of fiery, ideological judges,” who are alienated from our traditional civic and societal values that for all their flaws, warts and pimples, have stood us in good stead and have made us the great nation that we are.  

Follow up.  Funny coincidence department. Within a couple of days of Lithwick’s Los Angeles Times op-ed, the New York Times informs us (Neil A Lewis, Obama’s Court Nominees Are Focus of Speculation, 3/11/09, at p. A17) that folks within the Obama administration are gearing up to start announcing their judicial nominees. And get this: “Gregory S. Craig, the White House Counsel told Democratic Senators that the White House would rely on the Senators’ recommendations to fill the district court [vacancies]. But he said that while Mr. Obama would welcome their advice, he warned that filling the appeals courts was largely a presidential prerogative. . .” Yeah, man. The Senators will just love that one. Stay tuned — if this story is true, it should be quite a donnybrook.

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