Judicial Selections

The New York Times and OpinionJournal.com both offer reaction to John McCain’s recent speech about judicial selection. The Times, predictably, both misrepresents the decisions it opposes and disparages same as "right wing". Unfortunately, the Journal contributes to the problem by referring to McCain’s probable judicial selections as "conservatives".

The Times long ago surrendered any claim toward intellectual honesty; it’s opinion pages compare unfavorably with Pravda. Nowhere is this dishonesty more patent than in its discussion of judicial decisions.

Consider this brief paragraph:

Since President Bush chose Justices Roberts and Alito, the Court has ordered Seattle and Louisville to scrap voluntary school integration, protected employers who illegally mistreat their workers, and constrained women’s right to choose and voters’ right to vote.

In each case, the description of the Court’s action is flagrantly dishonest.

In the "voluntary school integration" case, the Court determined that school districts could not exclude children from schools or programs based solely upon their race. The majority repeatedly cited the language of the plaintiff’s in Brown v. Board; plaintiff’s there expressly argued that race could never be a factor in making attendance decisions. If Brown was correctly decided, than so were the Louiseville/Seattle cases.

The Court most certainly did not "protect employers who illegally mistreat their workers". Instead, it ruled that under one particular statute, an employer who believes she has been mistreated has only 180 days to sue. To rule otherwise would have done violence to the express and unequivocal language of the law, which Congress is free to change if it believes it erred in its original draftsmanship.

"Constrained .. voters’ right to vote"? Only if one believes that the Constitution forbids electoral authorities from insisting that potential voters produce ID to prove their identity.

And, about the execrable, judicially-created "right to choose", the less said, the better.

To the Times, the merits of a judicial decision rest not on its fealty to the language of the law, but upon judicial willingness to impose a politically-correct result. In the "voluntary integration" case, some students found themselves excluded from schools and programs for no better reason than their skin color or ethnicity. But group-think, "diversity"-driven, ethnic and racial nose-counting are the central tenant of Leftist identity politics. Put another way, if arriving at the "right" racial and ethnic mix requires that some (white) students suffer a burden because of their race, to the Left, that comes under the heading of "oh, well, tough luck". Such a result is patently inconsistent with Brown.

Similarly, the Times is more than willing to accept a little vote fraud if the price of avoiding it means that voters must secure voter ID, which some infinitesimal number of voters may decide is too burdensome to undertake. These potential voters will, in Times-speak, be the poor, the elderly, minorities, etc., who will be "disenfranchised". Never mind that the plaintiffs in that case could not identify a single individual who would be discommoded by a seemingly entirely reasonable requirement that they prove who they are.

In both cases, the Times expected judges to read the Constitution and to conclude that (a) treating one child differently from another based upon skin color is dandy, provided that the motives of the discriminators are pure and (b) that the Constitution forbids a state from insisting that those who present themselves as qualified voters provide some basic proof that they possess the right to vote. In each case, the Court quite properly found that nothing in the Constitution compelled that result.

Nothing in either of these decisions is the least bit "conservative", except to the extent that the act of judging – applying the law to the facts, as the law exists, rather than as the judge might wish it to be – is inherently "conservative".

So the Journal’s use of that word is troublesome. The Left’s desire to employ the judiciary as simply another political branch, one which can be used to impose policies impossible to secure politically, does not justify a reciprocal approach on the Right. Judges are NOT "conservatives" if they pay attention to the text and history of the documents they confront; they are simply judges.

New Jersey presents a baleful example of the miserable consequences of leftist judges run amok; many of the problems confronting the state find their genesis in atrocious judicial decisions. Our absurd income/property taxes? Abbott v. Burke. Sprawl? Mount Laurel. Ballooning debt also finds its genesis in Abbott (school construction) and on the Court reading the debt limitation clause out of the constitution. NJ"s reputation for political skullduggery? The Torricelli replacement case and the redistricting case (in which the Court wrote a portion of the constitution out of the constitution, a truly remarkable feat).

Decisions like these – in which the Court essentially makes up the law as it goes along – do great violence to the institution of the judiciary. So, for instance, when the Justices of the NJ Supreme Court deny that they effectively conspired to prevent any executions in the state by inventing impediments, no one believes them. It may, in fact, be true, but given their patent willingness to impose their political predilections under the guise of constitutional mandate, the populace can be excused from taking the denials cynically.

Concepts like liberalism and conservatism have no place in describing judges. Instead, judges either do the job they are hired to do – the Alitos, Roberts, Thomases, and Scalias of the world come to mind – or not, ala the New Jersey Supreme Court. The policy result at which a court arrives is not determinative; the question is whether that result is compelled by the document the judges are reviewing. It is, for instance, simply impossible to arrive at Abbott by reading the text and history of the NJ constitution. One might like the policy, yet object strenuously to the judicial ukase which produced it. The result would be just as objectionable if the Justices mandated vouchers: great idea, but no possible interpretation of the Constitution permits a court to impose it.

Or, put another way, any potential judge the Times can endorse is presumptively unqualified for the job.