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Look at Sandra D!

March 12, 2010

Poor Sandra Day O’Connor. We should really start calling her Cassandra Day O’Connor: she keeps pointing out our inexorable progression toward doom (her current mission is to point out how we politicize the judicial process to the point where it’s just another democratic arm of government and not a somewhat insulated and reasoning branch of independent judgment), and we keep marching on, ignoring her.

Not that judges themselves have helped keep politics away lately; when Obama lashed out at the Supremes during his State of the Union Address, that was surely distasteful and populistically appropriate, but Alito (and now Roberts) should have never taken the bait and responded.  The difference is that it is Obama’s job to be a populist, while the judiciary is supposed to maintain an outwardly stone-faced indifference to the ugliness of politics.

I guess you can’t blame Alito and Roberts for being a product of the democratic and inquisitorial plebiscite that leads up to the confirmation of any judicial nominee in America today.  By holding our judges to the same standards we hold elected representatives (since it is those representatives who are holding those judges to account), we unfortunately dilute the talent pool because the job is simultaneously less desirable and less available to the most qualified candidates (especially if taking cues from Senator Shelby’s playbook).  Representative government is supposed to reflect the people, but we force judges to undergo the same (absurd) level of scrutiny, and get only the most middling, cautious, and predictable minds as a result.  Should we really want the judiciary to reflect the populace?  Have you spoken to an average American lately?  About law?

For the judiciary, this subjugation to politics is particularly subversive of its envisioned role in the three branches of government.  The framers and the Constitution contemplated that the judiciary would exist to counterbalance and rise above the temporary, factious, and downright democratic interests that tended to sway with the winds of political change.  The Third Branch of the government was intended to be immune from mere politics: hence the life term.

By forcing individuals with differences that are sometimes political and sometimes legal to go through the gauntlet of the judiciary, we are able to filter the mechanism of state intervention only to those claims most meritorious and worthy of redress.  We subject claims to several rounds of adversarial inquiry, where different points of view are able to attack, filter and distill the most worthy arguments through logic and not mere numbers.  In that sense, the judiciary is set up to resemble the scientific method, as applied to politics.  See Oliver Wendell Holmes’ seminal The Common Law (The life of the law has not been logic; it has been experience.”). The law works in smaller and more measured steps than politics, but the logical rigor of each step is thereby reinforced through several layers of filtration, thereby removing political bias at each level or at least making a decision easier to correct in the grand scheme of things by forcing the decision to remain as tightly constricted to the exact facts of the case as possible.

Sandra Day O’Connor, a pragmatist in the Holmesian mold, was (and to some extent, still is) undoubtedly one of our nation’s finest jurists.  She was the only justice who had worked in all three branches of government at varying stages of her career.  She witnessed the bitterness of politics firsthand, and saw what that would do to the judicial process if it was no longer immune to the pressures and necessities of campaigning by promising to give an infantile populace whatever it wanted on a given day of the week (and with a minimal knowledge of the issue to begin with).

And now she is prophesying ill of judicial elections, but we continue to march on unabated.  I wonder how those stories usually end.

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