Monday, January 23, 2006

On the Supreme Court: a letter to the Democrats on the Committee

Sens. Durbin, Kennedy, Feinstein, Biden,

To begin with, what is a Federalist? Do you know? A Federalist is one who believes that the Supreme court has a very narrow focus, that being to follow the Constitution. Does that mean every Federalist is a mindless republican who thinks and decides rulings the same way? I'm sorry, but that is not the case. Not even Justices Thomas and Scalia agree on everything the same way, and they are both considered to be the Rightest of the Right on the court.

Second, Federalists are not necessarily on the Right. Indeed, there are several democrats who are federalists and who disagree with several Court decisions that were decidedly non-Federalist, even if they agree with the conclusions..

Third: Roe Vs. Wade is not the biggest item on any Federalist agenda, or vast Federalist conspiracy theory. Sorry, it really isn't. Do they agree with the ruling, technically, no, but this does not even make any of them anti-Abortion. How can I say that? If you go back to item the second, you notice that democratic federalists can disagree with a court decision, even if they agree with the conclusions: Roe is one of them. Leftist Federalists think that Roe vs. Wade is bad law, logically inconsistent, making up precedence in the constitution that isn't there. Does that mean they are pro-life? Not at all, this just means that the topic of abortion should be left up to the legislative branch and not the judicial. To elaborate: The United States is the ONLY country on the planet that did not have a vote on abortion, it was simply ordained by the court.

Fourth: no one in their correct mind says that Roe. Vs. Wade is decided law. Why? Because Roe is challenged constantly, every year, at least once a year. Brown vs. Board of Education is settled law because no challenges have come to that ruling for over fifty years. Roe will be challenged for the foreseeable future, and asking any justice to decide on it in session is calling for him to have an opinion on a case that may come before his court. You know that it's wrong for any justice to have his mind made up on a case before it appears, and asking anyone to decide is merely a way of trying to nullify a candidate. Any justice candidate who can't talk around those questions doesn't deserve to be on the Supreme Court. By the way, the federalist has all sorts of wide-ranging hobbies and interests, including restoring power to the states, embracing the framers' ideals, and curbing federal and judicial power. The idea that all federalists are single-mindedly planning the demise of Roe is mistaken. As Harvard law professor and former Clintonista Laurence Tribe reminds us, Roe can be nicely hollowed out without ever being expressly reversed. They've largely moved on. So should you.

There are also several items which made come to you in time, but to save everyone the bother, several obvious items you may have missed. To begin with, Federalists are not you. They are not Michael Moore fans teeming with hate and rage ready to rip apart anyone who disagrees with them. Federalists will not erupt into a hissing, spitting parody of Bill O'Reilly and then try to strangle you with his bow tie on C-SPAN-- thankfully, few people wear bow ties anymore, so you're probably safe. Federalists, like John Roberts, love their families and do not devote their lives to systematically holding back women, persecuting minorities, and stealing wheelchairs from the disabled-- that we leave in the capable hands of terrorists. Attempts to tar the federalist as having dedicated his career to raging misogyny or racism will likely backfire. Most of them have better things to do.
Federalists do not believe in "fairness": While they don't seek to promote the interests of white men, big businesses, and the unborn; he is also wholly unconcerned about "giving a fair shake to the little guy." They simply don't accept the proposition that the courts exist to elevate the interests of the little guy above everyone else. This is a defensible constitutional theory that you might consider debating with a federalist . You may want to ask him pointed questions about the responsibility of the courts when the elected branches of government fail—as they have done on occasion—to protect minorities. You may want to press him on the possibility that the courts should do more than mechanically apply the law as written. Such a conversation might prove enlightening for the American people. But asserting that federalists are inherently not fair or honest, no matter how many times you say it, remains reductive and untrue.

Federalists are human beings. They have hearts, although they may not be able to cough one out onto the Senate floor on demand. Federalists also believe that the heart is not an organ relevant to deciding cases. They believe that the law is the only thing relevant to deciding cases. Nevertheless, federalists do cry. Their spouses cry. But you should not use these hearings to prick them. They will bleed. Just as if you tickle them, they will laugh. Oh … and if you wrong them, they will revenge.

Technically, conservative judges do not "apply the law" while liberal jurists "make it up." As I said, there are democratic federalists. However, that does not matter when the Leftist "we make it up" judges get all the publicity. This is a bad move for you democrats. Conservatives judges read the statutes, study the precedent, and then mechanically deduce what the law is, without regard to their personal preferences. You may want to probe whether there are indeed "moral judgments" at the heart of their decisions. And if you suspect that all judges inevitably make such moral judgments, you might seek to uncover from where such moral judgments come. When your inquiry proves fruitless (i.e., you are stonewalled), you may wish to turn to other sources to refute the notion that nothing in a person's history or ideology is reflected in his (or her) moral judgments.

Ladies and gentlemen of the Senate judiciary committee, not all federalists are grumpy or hotheaded. Federalists have a view of the Constitution and the allocation of government powers that largely differs from yours. The Court interprets the law, it does not MAKE the law. And remember that Supreme Court workers universally name Clarence Thomas as the kindest and warmest justice on the current court. That is irrelevant to how he decides cases, and you should think on that when asking about the next nominees you look at.

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