war of the worlds

It is that season again. A Supreme Court nomination is again our nation’s political focus. There is no question that this has become a sham political debate and not a quest for a sound jurist.

It would be naïve to suggest that politics in the judiciary is a new phenomenon in our land. Marbury v. Madison itself was about the seedy intersection of politics and blind justice. What I am decrying is that the process has been emptied of all content whatsoever.

The divisiveness over Roe v. Wade has much to do with this, but this is itself merely part of a larger trend. A trend toward high stakes political gamesmanship at the expense of We the People. A trend away from the substantive decision-making and toward the blood sport of politics.

The Roe debate itself is minor in the context of the overall tragedy which is the extreme politicization of the American mind.

It is with some mirth that I observe all the casual conversations around the water cooler where the phrases “judicial activism” and “strict construction” are bandied about with cavalier certainty. But I derive no similar humor from the lawyer-politicians who consciously perpetuate the existence of these mythical jurisprudential antipodes. The shameless lying coming from both sides of the aisle should disgust any informed observer.

“Lying” will probably seem too harsh a word to many. But frankly if you make it through law school and still have an honest belief that this political terminology is of utility in the substantive discussion, then you are too stupid to deserve the degree. Sadly, I do not think that most of the CongressCritters are in fact stupid. They just play stupid on TV.

The truth you seldom hear is that this quasi-legal language exists solely as proxies for underlying political positions.

The funny thing is that many of the same people who carp the loudest about these issues are the same ones you will later hear lamenting the poor jurisprudence coming from our courts. As the ancient wisdom would tell us, we will reap what we have sown. Sow political seeds and what you get is political fruit. And political fruit is almost never good law.

Personally, I lay much of the blame at the feet of the Traynor and Warren courts. These “great” jurists and their brethren made it fashionable for courts to get into the business of making law. Brown v. The Board of Education led to the popular error that the courts are competent to be agents of social change. And have no doubt, “error” is exactly correct: as monumental as was Brown it is highly arguable whether the court ordered busing produced the social benefit many assume flowed strictly from that aspect of the decision.

My just saying something negative about Brown will undoubtedly prompt some ugly emails.

But I have a dream of sound jurisprudence that anchors our human rights in natural law rather than subjecting them to the whims of an inherently political legislature or their conscripts in the judiciary. Contrary to the myths you hear nightly on the news, returning the courts to their limited Constitutional function would not dictate any particular political outcome. Social Justice is possible without tearing our legal institutions apart. Liberty can be protected without shredding our Constitution.

But judging by the empty rhetoric I hear daily, my vision is destined to remain nothing more than it is: an abandoned dream.