Thursday, May 31, 2007
Althouse speaks on Justice Ginsburg reading her dissents from the bench. (via Instapundit.) I add some observations in the utmost humility. I was a humble clerk on the D.C. Circuit Court of Appeals when Justice was Judge Ginsburg, and Justice was Judge Scalia, and Bork was Judge Bork. You had to admire Judge Ginsburg's obvious intelligence, and she seemed like a nice lady. But the idea that she was somehow less political than any other judge is just silly. She was very political. They all were. Some cared more about the law than others, and Ginsburg cared about the law. But there was no question that on a case involving sex discrimination or labor unions, you would be a fool to bet against a liberal outcome if she were the swing vote. She was a nice lady, but she also knew how to rip somebody a new one, if you will. I saw her dress down a rather pompous questioner not up to the task at a Federalist Society event. It was not pretty. She was perfectly able to to mix it up. The idea that she is some kind of elegant, delicate flower who has been forced by the big, bad conservatives to descend into the hurly burly of the political rough and tumble is a complete fantasy of the New York Times and Linda Greenhouse. That is to say, utter rubbish. Justice Ginsburg has been hurly burlying for a long time. She was a civil rights litigator for heaven's sake. She's an old school feminist. If you can find it in your heart, give me a break.
I make no claim to be hip to the profundities of the jurisprudence of the U.S. Supreme Court. But can I be the only one whose intelligence is insulted by this attitude of, oh, golly, the Cahart decision is just politics, not law. You start with Roe v. Wade, a decision that sprang, like Athena from the brow of Zeus, out of Justice Blackmun's none too cerebrally blessed head, a decision so appallingly made up that those of us who went to law school in the '80's had to suffer through years of tendentious theories of "non-interpretive judicial review," that is, theories about how making it up isn't really quite exactly making it up, though, in the alternative, it is OK to make things up if you really have to, and then, when decades later, the Court decides, with at least some guidance from Congress, to say, well, abortion is OK, but you know, if it's a baby already, and half-way out, and Congress says so, then, well, you shouldn't just, you know, squish its little head, we have to sit here and listen to the paroxysms of indignation that this is politics, not law. That we run the risk of making poor, old, apolitical, white glove clad Justice Ginsburg descend from the Platonic heaven of pure juridical dispassion, and read her dissent from the bench. Oh, my, we've done it now.
Don't get me wrong. I like judges. Judges are fine. But a lot of this icky journalistic judge worship, not to mention that which some law professors indulge in from time to time, stems from giving judges so much arbitrary power in the first place, of which the bafflement that is Roe is the leading example.