Elena Kagan, despite her resume is unqualified for the US Supreme Court, and not because she lacks judicial experience.
The nomination of Elena Kagan for the vacant seat on the US Supreme Court is a slap in the face to serious lawyers, experienced jurists and anyone who has a serious understanding of the law. Of course, from Barack Obama, someone who seems to have very little knowledge of, or respect for, the law and particularly the Constitution, it should not be surprising. After all, he has a particularly warped view of just about everything that relates to the Supreme Court.
Obama praised the outgoing Justice John Paul Stevens as a “brilliant, non-ideological, pragmatic man, committed above all to justice, integrity, and the rule of law.” This was far from the truth. Stevens was an ideologue, although a knowledgeable one, who was able to cloak his opinions in legal references, which made him look more pragmatic than he was. He certainly was not interested in preserving the rights of the individual, nor did he understand that “in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” Consider as evidence that he wrote the majority opinion in the notorious case of Kelo v. City of New London, 545 U.S. 469 (2005) in which the Court ruled that the city of New London, Conn. could take the property of various local citizens for use as a public development, the “public purpose” of which was to increase property tax revenue. The case stirred much public outcry as a travesty of justice, and today, the land remains a vacant lot, not producing the promised jobs or tax revenue. Stevens decided against the little guy, as he has in other cases, consistently favoring government power against the rights of the citizen. If Obama wanted someone who would be a repeat of Justice Stevens, Kagan was an excellent choice.
To begin with, at age 20, she contributed a piece to the Daily Princetonian lamenting the election of Ronald Reagan and the apparent demise of the left in American politics. Her senior thesis was more of the same, again lamenting the lack of socialist success in the political system and its failure to change America.
After graduation from Harvard Law School in 1986 she became a clerk for Judge Abner Mikva, a hard left member of the U.S. Court of Appeals for the D.C. Circuit. Later, she also clerked for U.S. Supreme Court Justice Thurgood Marshall. All well and good, except for the slant of her approach to the law. Here was a definite showing that she was no centrist, nor was she interested in the law for its own sake. Instead, she was attaching herself to people who saw the law as a tool for controlling the people, and expanding government power at the expense of the citizenry.
It was after she was appointed dean of Harvard Law School that Kagan publicly displayed her infamous anti-military position when she took issue with President Clinton’s “don”t ask, don’t tell” policy regarding homosexuals in the military; a policy she regarded as bigoted and unjust. In an e-mail distributed to the essentially everyone connected with Harvard Law in October 2003, Kagan wrote: “I abhor the military’s discriminatory [don't ask,don't tell] recruitment policy” characterizing it as “a profound wrong, a moral injustice of the first order … a wrong that tears at the fabric of our own community.” It appears that Harvard’s Internet records connected with this email have been removed.
Kagan attempted to bar military recruiters from the Harvard Law School over this dispute and eventually took the case to the Supreme Court where she lost in a unanimous decision, not that the Court had much in the way of options. The controlling law had no wiggle room, and even the left was unwilling to go out on such a limb, where the rights of the military were concerned. However, more importantly, it showed how out of step her views were with even the hard left’s Ruth Ginsburg.
Since her nomination Ms. Kagan has faced criticism for her lack of judicial experience. To take this further, she has no experience as a litigator, having never argued a case in court. She has also shown her credentials as a scholar to be quite questionable. Consider that during her legal career, she has written only nine published works, and two of them were book reviews. Not much for a law school dean; particularly the dean of Harvard.
Further, in one law review article, she opined that the Court exists primarily to look out for the “despised and disadvantaged.” This flies in the face of the entire history of common law theory and the concept of equal justice under the law. The judiciary is expected to show no favor any one particular group, and to apply the Constitution and laws showing with equanimity. Instead of showing her understanding of the law, as a true legal scholar would, she echoes Barack Obama’s frequent assertions that judges should apply something other than law in rendering their decisions. Of course, this fits in with the idea that the Constitution should only be respected when you agree with it; which hardly befits the oath of office of a federal judge, let alone a Supreme Court Justice.
This becomes more significant when we examine her approach to First Amendment issues. It appears that Ms. Kagan does not believe in true freedom of speech. In a recent brief, in the matter of United States v. Stevens, Kagan opined to the Supreme Court that “Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of the speech against its societal costs.” On April 20, 2010 the Court rejected this view. Of course, one could suggest that she was only attempting to make a difficult argument in a well settled area of law and had very little to go on, so instead let us consider what she wrote in 1993 for the University of Chicago Law Review in an article entitled “Regulation of Hate Speech and Pornography After R.A.V.,” in which she attempted to find a constitutional justification for the restriction of forms of speech that she personally found offensive and, among other things, the creation of “viewpoint speech restrictions.” This idea would, if accepted, eliminate traditional free speech protections, open the door to prior restraint, censorship of publications criticizing the government, and/or creation of a “seditious libel” statute such as existed in the Soviet Union.
Finally, we should also note that Kagan has been a child of privilege, who has never held a position other than in academia or in government. She cannot identify with the average American or with the “poor and disadvantaged” because she has never been either.
Instead, of Kagan, there is a better candidate for Justice Stevens’ seat; a current member of the DC Circuit, and a favorite of mine, Janice Rogers Brown, whom I have previously promoted here and here. The daughter of southern sharecroppers who lost her husband to illness, she put herself through college and UCLA Law School as a single mother, and served as an attorney, judge, and Justice on the California Supreme Court. Her judicial philosophy might be summed up in a statement she made some years ago:
The quixotic desire to do good, be universally fair and make everybody happy is understandable. Indeed, the majority’s zeal is more than a little endearing. There is only one problem with this approach. We are a court.
This is something Obama and Kagan will never understand, which puts Judge Brown light-years ahead of them on the legal scholarship scale. It’s a pity that once again she has to wait while an inferior intellect takes a favored position because of politics. This time relegated to a seat in the back of the bus by the very people who are supposed to sympathize with someone from her background.
Mr.Laib pretends that the fact that Elena Kagan has never been a judge is a fatal flaw, when in truth his real problem with her is ideological, as his examples plainly show. A number of Supreme Court Justices had not served as judges prior to their appointment and confirmation: Louis Brandeis, Charles Evans Hughes, Earl Warren, Felix Frankfurter, Hugo Black, Lewis Powell, Byron White, Abe Fortas, and William Rehnquist.
Laib is especially disingenuous in his praise of Janice Rogers Brown as a better SCOTUS candidate than Kagan. Brown is a hard-line conservative, whose conservative policy views shape many of her judicial opinions.
Of course, I do not expect conservatives to support or like Kagan. What I would like to see conservatives have the intellectual honesty to admit openly is that they, like liberals, prefer judges who share their own ideological and policy views. At least the air would be a little cleaner on the subject of SCOTUS appointments.
http://www.csmonitor.com/CSM-Photo-Galleries/Lists/Supreme-Court-Justices-with-no-pr
Well, we have a wise Latina on the bench; it’s only right and proper that we have a wise Angla. In any event, we can only hope that she’s a bone thrown out to test the waters.
Gestell,
Do yourself a favor; go back and Read the Column. At the very top it says “not because she lacks judicial experience.” As for Judge Brown, I am being intellectually honest in admitting that I prefer judges who know that their job description does not contain a section on “reforming society to suit your personal preferences.” Read the quote from Judge Brown.
I hate to say it, but there are so many people who don’t read the law, read the bill, or read the whatever, but are always so eager to render their opinions on it.
Mr. Laib,
Your write that Kagan’s nomination is “a slap in the face to serious lawyers, experienced jurists and anyone who has a serious understanding of the law.” Tell me, can you imagine any liberal nominee (or judge) whom you would include in this list? I didn’t think so.
As I said, conservatives prefer judges whose biases are conservative–this is what conservatives mean when they tell us they want a judge who adheres to the Constitution.
Barack Obama, in his Senate speech against the nomination of Brown to the D.C. Court of Appeals, got it right when he said that Brown is “not simply a judge with very strong political views, she is a political activist who happens to be a judge.” Given her conservative judicial philosophy, I’m amazed (and amused) that she nonetheless made a significant exception in favor of liberal activist jurisprudence (as well as considerable social engineering) when it came to desegregation cases. Any genuinely conservative judge should know that none of thelandmark civil rights decisions made by the Supreme Court[and I'll start with Powell v. Alabama, 1932] can or should find support in conservative principles. Clearly Judge Brown has no problem with some examples of the “quixotic desire to do good.”
It is not Kagan that I fear, it’s the next unqualified person that obama nominates. Yes, Gestell, that’s correct, unqualified. If you would take off you ideological glasses with their liberal tint you could see what a joke this woman is.
Gestell:
Re: “Tell me, can you imagine any liberal nominee (or judge) whom you would include in this list? I didn’t think so.”
This is probably true, but so what? Consider how liberals look at interpreting the law. In a debate between Justices Breyer and Scalia on C-SPAN in 2005, Breyer said he favored the “living Constitution” approach based on “the evolving standards of decency of American society”. Scalia stated that he didn’t believe in the “living constitution” idea but, granted that if one does, who decides the current “standards of decency of American society”, the “cream at the top” [who have lived their whole lives there] or the people through their elected representatives?
If you favor Breyer’s position, you have to be ready for the day when conservative judges get a majority and decide what “the evolving standards of decency of American society” are. Do you want that?
Re: “As I said, conservatives prefer judges whose biases are conservative–this is what conservatives mean when they tell us they want a judge who adheres to the Constitution.”
And you want judges to adhere to something else, like foreign law or their own personal preferences perhaps?
P.S. Liberals have no room to talk about conservatives’ preference for judges; we didn’t invent borking.
Replies to hvance and sedonaman:
To hvance: By “unqualified” you mean that you disagree with her on ideological grounds, I suppose. Actually, I don’t think Kagan was the best choice among those said to be on Obama’s short list. I would much have preferred Diane Wood. She has a track record as a judge (although, of course, conservatives dislike her views), and she is a far better legal scholar than Kagan seems to be.
To sedonaman:
You write: “If you favor Breyer’s position, you have to be ready for the day when conservative judges get a majority and decide what “the evolving standards of decency of American society” are. Do you want that?”
No, I don’t want that, but that’s what we have already with the conservative majority on the court. They may not believe in ‘evolving’ standards of anything, but they do view the Constitution and judicial decision-making in the light shed by conservative ideology.
To sedonaman: By the way, you also believe in the “evolving standards of decency of American society” if you’re among the vast majority of Americans who, I am reasonably sure, would reject drawing and quartering in public as a form of capital punishment.
To sedonaman on borking: Come on, now! When conservatives attack, that’s ok, but when liberals attack that’s really awful. Besides, we liberals did your side a favor by borking Bork. You probably didn’t know that Bork doesn’t believe in natural rights. He is what is known in legal theory as a legal positivist. Bork characterized the 9th Amendment as a ‘blot of ink’ on the Constitution, rejecting both natural rights and the natural law doctrine which is the foundation of natural rights. Now I ask you, as a conservative, do you really want such an anti-Constitutional judge as Bork on the high court?
Gestell:
Re: “No, I don’t want that, but that’s what we have already with the conservative majority on the court.”
I disagree that we have a conservative majority. You can argue all you want that most of them were nominated by Republican presidents, but that’s not what makes a justice conservative; his performance does. The way I see it, there are four you can count on to be liberal, four you can count on to be conservative, and one who tries to be the swing vote, which, no matter how you look at it, is liberal because he’s attempting to maximize government influence on society by simply being the determining factor instead of looking at how the Constitution applies in a particular case. So, we have a liberal court.
Re: “They may not believe in ‘evolving’ standards of anything, but they do view the Constitution and judicial decision-making in the light shed by conservative ideology.”
Like what “conservative ideology”? Can you name any decisions and explain just how they were decided by viewing the Constitution “in the light shed by conservative ideology”?
Re: “By the way, you also believe in the ‘evolving standards of decency of American society’ if you’re among the vast majority of Americans who, I am reasonably sure, would reject drawing and quartering in public as a form of capital punishment.”
I didn’t claim that there shouldn’t be evolving standards of society, nor did Scalia. The question posed is who determines what they are and how? As far as drawing and quartering is concerned, we have an equally barbaric method of execution the court determined that American society’s standards of decency had evolved sufficiently enough to justify such punishment for the mere crime of existing. I speak of course about abortion. Just how did the court determine that American society’s standards of decency had evolved sufficiently enough to justify their decision? Did they take a poll? Did they hold town hall meetings? Did they read letters sent to them by citizens? Did they look at pictures of aborted babies? Or did they just judge by the quality of oratory and the multiplication of words by a member of their own private elite club? We already know they don’t listen to the hoi polloi because they told us that demonstrations outside their court have no effect on their decisions, so I doubt they read any letters either, and I’ve not heard of any polls they took. Few of them make speeches – heaven forbid they risk not being objective. So if the evolving standards of decency of American society is the method of choice, does this mean that as soon as the public support for, say, abortion drops below 50% that the court will reverse itself?
Re: “To sedonaman on borking: Come on, now! When conservatives attack, that’s ok, but when liberals attack that’s really awful. Besides, we liberals did your side a favor by borking Bork. You probably didn’t know that Bork doesn’t believe in natural rights.”
Name me one liberal nominee that conservatives borked. I can name several who weren’t but should have been.
Natural rights are in the Declaration of Independence. You are saying we have a conservative who rejects the Declaration? Gimme a break.
Bob Stapler:
Thank you for your kind words.
Gestell, “By “unqualified” you mean that you disagree with her on ideological grounds, I suppose.” Please refer to the article that Laib wrote for the meaning of unqualified.
As for a “living constitution” that is plain and simple wrong. The reason is that that allows people, left & right, to interpret the constitution as it fits their ideology. The Constitution allows for us to change it by amendments, not someone who has an agenda. As a liberal I realize that you need for everything to be feel good and that there be equal results for everyone, regardless of effort and ability, which is not real world.
Why do I get the feeling it’s OK for liberals to be judicial activists but not conservatives? Perhaps it is because of what Buckley once said: “Liberals claim they want to give a hearing to other views, but then are shocked and offended to discover that there are other views.”
reply to sedonaman May 16th 12:12pm
I don’t have a problem with conservative judicial activists; my problem is with conservatives who refuse to see that there are such things and refuse to admit that this is what they want in federal judges. All too often conservatives seem to think that only liberals can be judicial activists.
The conservative error stems from a belief that there can be actions undertaken by a government that are strictly neutral and that court decisions fall under that category. No court decision is neutral in such a way. Of course many conservatives fantasize that a federal judge is engaged in something like posing a question to some neutral body of principles and then seeing what happens. What is incorrect is the idea that the Constitution is, or contains, such a neutral body of principles. No, it does not–its principles are quite specific. They were formulated by actual persons who were most assuredly not ‘neutral’ in their views about the sort of government they were creating, much less about the principles that government embodied. Conservatives, of course, see no differences between Constitutional principles and ideologically conservative principles. Here’s a simple way to examine this issue. Can any conservative who reads this site give me an example in which conservatism points one way and the Constitution the opposite way on any important issue? That is, can anyone identify a conservative ideological principle that is opposed by the Constitution?
Gestell: “Can any conservative who reads this site give me an example in which conservatism points one way and the Constitution the opposite way on any important issue? That is, can anyone identify a conservative ideological principle that is opposed by the Constitution?”
Well Gestell, we agree on this. The Constitution is laced with conservative ideology, it has been our country’s guiding light which has resulted in the U.S. being the most powerful nation in the world. As I have pointed out, the Constitution allows for amendments, not interpretation, of its laws. Trying to defend it as a living Constitution is impossible if one simply reads it.
“I don’t have a problem with conservative judicial activists; my problem is with conservatives who refuse to see that there are such things and refuse to admit that this is what they want in federal judges. All too often conservatives seem to think that only liberals can be judicial activists.”
Well, I have a problem with any judicial activists. You don’t give us much credit for knowing our history; conservative judicial activism was practiced in the late 19th century. Dred Scott could be called conservative judicial activism – Justice Taney said, “I know in my heart that the constitution allows slavery.” Which gets us to the definition of judicial activism as I see it: seeing were you want to be and arguing back to some point in the Constitution instead of starting with the Constitution. Robert Bork in his book, The Tempting of America, said that the solution to liberal activism is not conservative activism but judicial restraint. IOW, where the constitution fails to address an issue, the court should defer to the Legislative Branch. Example:
Whether racial preferences are Constitutional is a difficult question. It is not, however, difficult to say whether such preferences are illegal under existing legislative statutes. They are.
Under Title VI of the 1964 Civil Rights Act – our most important civil rights statute – no institution receiving federal funds may discriminate by race under any circumstances. Congress understood the Brown v. Board of Education school segregation decision to prohibit all official race discrimination. In its 1964 Act, it adopted and extended that principle across American society.
The University of Michigan race preferences now being considered by the U.S. Supreme Court should therefore be declared unlawful under the Civil Rights Act, thereby avoiding the need to consider the sticky Constitutional question. The practical effect of such a decision would be to return the question of preferences to the political process.
…
If Congress has changed its mind since it passed the Civil Rights Act, it can repeal Title VI, or amend it to allow racial preferences. This would require Congress to specify the nature, extent, justification, and duration of permissible selection by skin color. That would bring the use of preferences and quotas fully into the open, unlike now where they are applied most often in secret. – Constitutional Law Professor Lino Graglia
The problem as liberals see it, is that their goals, affirmative action in this case, cannot be realized if placed to a vote of the legislature responsible to the unwashed ignorant, but can if placed before activist judges who, by following the current fad of the ultra-liberal academy, want to appear enlightened. Graglia continues:
The difficulty with our system of representative self-government, as they [liberals] see it, is that everyone gets to vote, with the result that the views of the unenlightened masses are likely to prevail. The function of constitutional law, in the view of our cultural elite and as it has largely operated in recent decades, is to keep this from happening. The first and most important thing to understand about constitutional law is that it has very little to do with a constitution. It has become essentially a device or ruse for policymaking by judges. Such policymaking is much preferred by our cultural elite to policymaking by the elected representatives of the people because judges, given a free hand in policymaking, can generally be relied on to serve as the mirror, mouthpiece, and enacting arm of liberal academia in general and liberal legal academia in particular. [We have since gotten a "wise Latina" who admits that the job of a judge is policymaking.]
…
The prospect of [liberal] success is enormously enhanced, however, if the issue can somehow be removed from the control of legislators and decided instead by judges using the magic and mystery of constitutional law.
This is the only reason constitutional law has become so pervasive and important and so enthusiastically supported and defended in legal academia.
This magic and mystery is nicely illustrated in the Tanner and Baker decisions, each holding that some or all of the benefits bestowed by law on marriage must also be bestowed on certain arrangements between same-sex couples. In each case the judges wrote opinions, as is required by convention, purporting to explain the basis of their decisions. As in almost every case involving a ruling of unconstitutionality, however, the judges faced an impossible task. This task is to show that their rulings constitute an exercise of the judicial rather than the legislative function, that they resulted from the application of law – pre-existing authoritative rules – rather than from nothing more than the judges own personal policy preferences. That, however, is almost always patently false.
What legal, as opposed to purely personal, justification could the Tanner and Baker judges possibly offer for their decisions? Where is it written, do you suppose, in the Oregon and Vermont constitutions that their legislatures may not prefer marriage to same-sex liaisons? In each case, the judges purported to interpret and apply a provision of their state constitution so as to create and impose a general requirement of equality. [This is an example of starting with where you want to end up and arguing back to the Constitution.]
These provisions, however, do not create a general requirement of equality. The law does not and cannot treat all persons – young and old, weak and strong, rich and poor, male and female, and so on – as equal in all regards. The very purpose of law is to classify (discriminate among) people for different treatment; for example, burglary statutes distinguish burglars from non-burglars. Blacks, women, and 18-year-olds have the right to vote, while aliens and felons do not, not because of any principle or requirement of equality (or “equal protection”), but because they were given the right by the Fifteenth, Nineteenth, and Twenty-Sixth Amendments, respectively.
There is no requirement of equality other than the tautology that all people must be treated in accordance with their legal rights.
“The conservative error stems from a belief that there can be actions undertaken by a government that are strictly neutral and that court decisions fall under that category.”
I don’t know where you got this idea. The very nature of the law [even the Constitution] is to discriminate, as Graglia points out. The very act of enforcing the law naturally puts the government in a non-neutral position, i.e., against the law-breaker.
“…Can any conservative who reads this site give me an example in which conservatism points one way and the Constitution the opposite way on any important issue? That is, can anyone identify a conservative ideological principle that is opposed by the Constitution?”
This is an absurd request since conservativism is grounded in the Constitution, and not the personal preferences of judges, “liberal” or “conservative”. The constitution was hammered out with, and by, a lot of debate and compromise, and this is where its changes should originate, using the same process, not with a judge who has personal preferences.
reply to sedonaman:
Actually, Chief Justice Taney was an impeccable originalist. Consider the following:
“No one, we presume, supposes that any change in public opinion or feeling…. should induce the court to give to the words of the Constitution a more liberal construction… than they were intended to bear when the instrument was framed or adopted. If any of its provisions are deemed unjust, there is a mode prescribed in the instrument itself by which it may be amended: but while it remains unaltered, it must be construed now as it was understood at the time of its adoption.”
Dred Scott v. Sandford, 60 U.S. 19 How. 393 (1857).
Taney recognized correctly that the Constitution, as originally intended, supports slavery. He was hardly a ‘conservative judicial activist.’
Judge Bork, in the very book you name, also characterized the 9th Amendment as a ‘blot of ink’ on the Constitution because he could not find any intelligible meaning in the notion of ‘rights’ that are not specified in the Constitution. This means–and other citations from Bork can show this as well–that Bork is a legal positivist, which also means that he has no room for natural rights. Not surprisingly, Bork also rejects the notion of constitutionally protected privacy rights, and I hope you, as a conservative, try to imagine what it would be like to live in a nation in which privacy found no support in fundamental law.
You indulge in a bit of question-begging when you write “conservativism is grounded in the Constitution, and not the personal preferences of judges, “liberal” or “conservative”.” My point is that conservatives assert that conservatism is grounded in the Constitution. You take this as self-evident fact, and so insulate yourself from rational discussion of this point.
conservatives assert that conservatism is grounded in the Constitution. You take this as self-evident fact, and so insulate yourself from rational discussion of this point.
What exactly is it, in your estimation, that legal conservatism – that is, conservatism in the context of legal philosophy – conserves? By the very nature of the term, “conservative” judicial philosophy would defer to existing law, correct? And in the context of the Supreme Court, whose job it is to interpret the constitution as it applies to specific legal cases, what would the conservative jurist defer to? Probably the constitution, correct? So by definition, a conservative Supreme Court justice would be one who defers to the constitution in determining legal issues brought before the court. Using the term “conservative” in a context of legal philosophy rather than political philosophy, the term “conservative activist” is a contradiction in terms. Similarly, the term “activist” in this context does not really need to be qualified. An “activist” justice is one who does not defer to the constitution – whether you choose to call him a liberal or a conservative or a moon man. This is not a conservative political contention – it is merely an example of the identity property.
In his discussion of the Ninth Amendment, Bork was not critical of the amendment, much less call it a “blot of ink”; he was critical of former dean of Stanford Law School John Hart Ely who believed the Ninth Amendment gave judges the authority to find new rights outside the Constitution.
reply to sedonaman:
Bork did indeed use the phrase ‘blot of ink.’ At his Senate confirmation hearings, Bork compared the 9th amendment to an “ink blot” that you “cannot read.” {1} He argued that because the rights alluded to in the amendment are not enumerated, nothing can be said about them. Thus, the Constitution is “silent.” Bork finishes this thought with: “”If the meaning of the Constitution is unknowable, if so far as we can tell, it is written in undecipherable hieroglyphics … judges must stand aside and let democratic majorities rule, because there is no law superior to theirs.”(2)
(1) Source: Nomination of Robert H. Bork to be Associate Justice of the Supreme Court of the United States: Hearing Before the Senate Comm. on the Judiciary 117 (1989) (testimony of Robert Bork) note 1, at 249.
(2) Source: supra, note 56 at 166
In “the Tempting of America” Bork extended this same analogy to the privileges and immunities clause of the 14th amendment. I’m surprised you didn’t know about this. There were conservative intellectuals who chattered about this at the time. Harry Jaffa weighed in with some blasts at Bork and later such originalists as Randy Barnett also went after Bork.
Do you have a page number in The Tempting of America to back up your “ink-blot” statement?
Yes, p. 166.
Further reply to sedonaman.
I doubt if you understand why some conservatives criticized Bork for rejecting natural rights. Part of the answer can be found in his well-known law journal article “Neutral Principles and Some First Amendment Problems”
originally in 47 Indiana Law Journal 1 (1971. This article is online at http://www.firstprinciplesjournal.com/articles.aspx?article=1190&theme=home&loc=b This is the site of ‘First Principles: The ISI Web Journal.’ By the way, ISI identifies itself as “The Home of American Intellectual Conservatism.”
Why do I keep calling Bork a ‘legal positivist?’ For him there are no extralegal criteria according to which law, including the Constitution, might be evaluated. If the Constitution is silent about some putative ‘right,’ then the right cannot exist. Bork’s reason is that ” Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other.” On any traditional understanding, a doctrine of natural rights is supposed to play precisely this role-furnishing a principled way to make such a decision. In his criticism of the Court’s reasoning in Griswold v. Connecticut, he frames the dispute between the plaintiffs and Connecticut as follows: “Every clash between a minority claiming freedom and a majority claiming power to regulate involves a choice between the gratifications of the two groups. When the Constitution has not spoken, the Court will be able to find no scale, other than its own value preferences, upon which to weigh the respective claims to pleasure.” Why does he choose the word “gratifications?” In Bork’s view the plaintiffs were claiming a ‘right’ to sexual gratification that allowed them to use contraception to prevent unwanted pregnancies. The majority (on the assumption that the state law at issue reflected ‘majority’ sentiment) was also claiming a right to enjoy its distinctive ‘gratifications.’ It’s no wonder that Bork could not defend a right to privacy; he saw the conflict as one involving opposed gratifications.
Indeed, Bork is also a relativist, although his conservative idolators are unable to grasp this. He writes: “There is no principled way to decide that one man’s gratifications are more deserving of respect than another’s or that one form of gratification is more worthy than another.” I can hardly think of a more concise way to formulate relativism than this.
Further: Bork rejects, as do most conservatives, the doctrine of substantive due process, which he writes “is and always has been an improper doctrine. Substantive due process requires the Court to say, without guidance from the Constitution, which liberties or gratifications may be infringed by majorities and which may not.” I pass by his claim that the antecedents of Griswold were wrongly decided to his comment on Justice Peckham’s remark in Lochner: ” Justice Peckham, defending liberty from what he conceived as a mere meddlesome interference, asked, “[A]re we all . . . at the mercy of legislative majorities?” [Bork then writes] The correct answer, where the Constitution does not speak, must be “yes.” I would add to Bork’s list of cases improperly decided. If Bork is correct, then Loving v. Virginia, 388 U.S. 1 (1967) was wrongly decided and the Virginia anti-miscegenation statute, the “Racial Integrity Act of 1924″ represented a constitutionally legitimate use of state legislative power. After all, the notion that interracial marriage should be allowed is merely a reflection of the desires of people for gratification, and cannot be a matter of fundamental rights. At least I don’t see why Bork would read this any other way.
The discussion on pages 165-167 are about the courts ruling where the constitution is silent or the meaning of a part is unknowable. The Ninth Amendment is not even mentioned anywhere. Here is the part about the “ink blot”:
And I don’t see anything wrong with that position. Nor do I see how he “characterized the 9th Amendment as a ‘blot of ink’ on the Constitution, rejecting both natural rights and the natural law doctrine which is the foundation of natural rights” from these pages. You are reading things that are not there, and I think the same goes for the rest of your arguments.
sedonaman & Gestell: The vollies have been fast and furious. sedonaman has aced Gestell with his last comment and I declare that the match is over. The debate was good and enjoyable by me and perhaps all but the real issue is not Bork but Kagan. The argument that one has to employ when he/she has a weak position is to change the subject and I will give style points to Gestell for that effort. Congrats sedonaman!
Your final comments hardly suffice as a counterargument. Do you deny that Bork wrote the things I cite? How much more plain does Bork need to be for you to see that there is a genuine issue here about very basic matters? His relativism should be abhorrent to a conservative, but evidently this is all plain sailing for you. And what sort of conservative contends that the only rights possessed by Americans are those plainly labeled in the Constitution? Since you still don’t seem to understand this issue, I’ll try again to explain it. Bork believes that there is no known principle upon which rights can be based unless that principle is literally found in the Constitution. Thus, Bork says farewell to a couple of millennia of natural law doctrines and Lockean natural rights, in favor of the doctrine that what the law does not permit, it forbids, or it allows the states to forbid. Now the last time I looked, conservatives were generally pretty keen about natural law and natural rights, so I gather that in the interim a new directive reached conservatives, informing them that this part of the Western tradition has been summarily erased.
For a libertarian discussion of this issue, see:
Cato Policy Report, vol. XV, no. 1, January/February 1993
“Dissolving the Inkblot: Privacy as Property Right”
by Sheldon Richman
http://www.cato.org/pubs/policy_report/richman.html
Re: “Why do I keep calling Bork a ‘legal positivist?’ For him there are no extralegal criteria according to which law, including the Constitution, might be evaluated. If the Constitution is silent about some putative ‘right,’ then the right cannot exist. Bork’s reason is that “Where constitutional materials do not clearly specify the value to be preferred, there is no principled way to prefer any claimed human value to any other.” On any traditional understanding, a doctrine of natural rights is supposed to play precisely this role-furnishing a principled way to make such a decision.”
I don’t agree that this makes him a “positivist” as you define it. The way I read him is that if the constitution is silent on an issue or right, the determination lies with the people through their representatives, not a judge’s personal preference, and certainly not his desire to show his “sensitivity”, “enlightenment”, “inclusiveness”, “non-judgementalism”, or “tolerance”. However, if what you say is true, perhaps you can explain how “natural” rights played this role in deciding that sodomy is a right.
As far as Bork being a relativist, I find that just a tad hard to believe since he was highly critical of relativism in his other book, Slouching Towards Gomorrah. If he is indeed a relativist, his senate confirmation hearings would have fawned all over him. I suppose next you will claim he’s a liberal.
Finally, why did he use the word “gratification”? I dunno. Maybe he just “felt” like it, in which case liberals should not have any problem since they are guided by feeling rather than some archaic, abstract notion of the law, ethics, objective truth, or morality established by some 4,000 years of Western Civilization, as Phil Jackson would say. Or perhaps he was saying that a living constitution is like a stiff d!ck – it has no conscience.
On why Bork is a legal positivist:
If the constitution is silent on an issue or right, you say, of Bork, ” the determination lies with the people through their representatives,” and not with a judge’s “personal preference.” This is a very clear way to state the essential premise of legal positivism in political terms. In other words, the people, through their representatives, get to determine what rights persons have. Perhaps if you stretch just a bit, you might now begin to understand why we liberals might have problems with that approach. If you need sources on legal positivism, here are a couple.
From West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc
http://legal-dictionary.thefreedictionary.com/Legal+Positivism
Legal Positivism is: “A school of Jurisprudence whose advocates believe that the only legitimate sources of law are those written rules, regulations, and principles that have been expressly enacted, adopted, or recognized by a governmental entity or political institution, including administrative, executive, legislative, and judicial bodies.”
For a more expansive discussion, identifying various sorts of legal positivism, see “Legal Positivism” (Internet Encyclopedia of Philosophy)
http://www.iep.utm.edu/legalpos/
Legal positivism arose in opposition to natural law jurisprudence. The positivist thesis can be stated as: there are no necessary connections between laws and morals, Natural law jurisprudence maintains, depending upon which sort of analogy one finds useful, that there is a ‘higher’ law than positive law or that there is a foundation for law, that law can (and must) be evaluated by such a standard. Now I suspect that most Americans think it is meaningful to say that there can be such a thing as an ‘unjust’ law, even a ‘bad’ law, or that what is legal is not necessarily morally right. For a positivist, no such distinction is meaningful, and this is precisely Bork’s point when he relativizes ‘gratifications.’ One ‘gratification’ is no better or worse than another. Thus, in his handling of Griswold he can make no room for the very idea that there may be some aspects of personal conduct that are, and rightfully should be, protected by a right to privacy. Presumably, such a right would be real if and only if some legislative action made it so. Bork would have to say, then—if he sought a greater consistency than he in fact achieves—that state-implemented racial segregation was ‘right’ (he would doubtless prefer ‘constitutional’) when such a policy enjoyed both legal status and majority support, and somehow became ‘wrong’ when both of these props were removed or disappeared.
Now, in what is surely an uncharitable cheap shot, you ask for a natural rights basis for ‘homosexual sodomy.’ Of course, what you assume is that I, as a liberal, must defend what you already know (somehow) to be morally wrong. Of course, I could engage in eristics and debate the moral rightness or wrongness of it, but there’s no need to do this. All that we liberals need is the notion that there is no compelling state interest in regulating consensual sexual activity among adults. If a natural law argument is needed here, it is simply that human beings have natural rights to engage in such activities as they mutually consent to do, and that this is no business of the state. Bork seems to have believed that Connecticut actually had a legitimate state interest in preventing its residents from preventing conception when engaged in sexual intercourse. Where that particular interest came from, Bork didn’t really say. Presumably the good residents of Connecticut just had their legislature take the position that condoms were immoral. And I thought you conservatives believed in “limited” government. Not really, you don’t.
All that we liberals need is the notion that there is no compelling state interest in regulating consensual sexual activity among adults. If a natural law argument is needed here, it is simply that human beings have natural rights to engage in such activities as they mutually consent to do, and that this is no business of the state.
Odd, considering that “you liberals” are responsible for the legislative banning of transfats and sodium in food, seatbelt and helmet laws, and taxation as social policy, such as the selective taxation of alcohol and tobacco, to name just a scant few 180 degree reversals from the policy and philosophy you advocate.
Here again, thinking purely in terms of the law rather than politics is helpful. What this conversation is distilling down to is a fundamental difference in opinion on the role and function of a judge and courts in our legal system. For Gestell and “you liberals”, the function of the judge is to be the arbiter of right and wrong, moral and immoral, based upon whatever philosophical or legal criteria the judge chooses, in his discretion, to apply. Slavery makes for a convenient example because it is universally acknowledged today to be wrong and immoral. The Gestell and “we liberals” camp believes the justices had an obligation to rule against slavery because it was wrong and immoral (this is true from virtually any conception of rights, but particularly individual rights), regardless of what the law and the constitution had to say about it. A legal conservative would argue that the function of a judge is merely to interpret and apply the law, leaving aside the question of whether or not the law is good or moral. So a conservative jurist prior to the passage of the 13th Amendment might have found slavery morally repugnant on a personal level, but would have been obligated to uphold its legality. Gestell sees this as relativism because the moral rightness or wrongness of slavery did not change, but here again here is mixing terms. Relativism has a different meaning in the context of morality than it does in the context of legality. It is, in fact, the judge who disregards the letter of the law in order to make a unilateral decision on the fundamental moral rightness or wrongness of the law who is engaging in legal relativism.
Without using the letter of the law as a binding guideline, judges ascend to the status of demigod, making determinations beyond what should be their proper purview. And while Gestell and “you liberals” are perfectly comfortable with that arrangement when the judge ascribes to the same conception of rights and morality as you do, remember that there may come a day when the “prevailing standards of decency” shift and you find yourself subject to the moral determinations of a judge with whom you stridently disagree. Just as conservatives are now regretting deferring power to the executive branch during the Bush administration now that Obama has the reigns. The entire purpose of having laws and a written constitution is to ensure that courts do not act arbitarily.
Kudos, Mr. Mulligan.
Re: “The entire purpose of having laws and a written constitution is to ensure that courts do not act arbitrarily.”
In fact, if a constitution means whatever you want it to mean, there is no rule of law but rule of men instead; and you might just as well have saved yourself the time and effort to debate, compromise, and hammer out a basic law of the land and just wing it, so to speak. And then, poof!, there goes the concept of limited government.
Mr. Mulligan, attempting to play ‘gotcha,’ supposes there is a contradiction between liberal views of individual freedom and liberal policies such as regulation of food ingredients, seatbelt and helmet laws, and ‘sin’ taxes. Policies like this are nothing unique to liberals. Some familiarity with state laws and local ordinances in 19th century America would show Mr. Mulligan that courts sustained a wide range of state and local regulations regarded as necessary to protect the health and safety of the public. Often subsumed under the ‘police powers’ of government, this regulatory regime predates the emergence of the sort of modern liberalism conservatives usually blame for all of the evils of the age. A good history of this topic, with ample case citations, is William J. Novak, The People’s Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996).
What is fascinating to me in these exchanges on this site is that self-styled conservatives seem to think that there are only two options: upholding the letter of the law or judging on the basis of some purely personal and arbitrary basis So liberals are said to believe that a judge should make decisions based “upon whatever philosophical or legal criteria the judge chooses, in his discretion, to apply..” The very idea of a standard that is more than simply someone’s opinion—one of those points conservatives used to regard as a matter of conservative principle—has simply vanished. The result is the statement that a judge should not rule against the moral wrongness of slavery if slavery is legal under the Constitution. In other words, Dred Scott was rightly and constitutionally decided. This makes the dissents of Justices Curtis and McLean in that case instances of legal relativism. So much the worse for that famous Western tradition conservatives used to defend with such eloquence.
For anyone interested in counting up Mr. Mulligan’s swerves away from what used to be fundamental for conservatism, there is his historicism. He writes: ”So a conservative jurist prior to the passage of the 13th Amendment might have found slavery morally repugnant on a personal level, but would have been obligated to uphold its legality.” So, the passage of the 13th Amendment changes everything. What is right? Well, it’s a matter of dates.
I note that Mr. Mulligan manages to dodge most of my points. He does not, for instance, rise to the discussion of what legitimate state interest might have been involved in Connecticut’s ban on condoms. Of course Mr. Mulligan can’t see any reason why slavery might be wrong, so I guess a ban on condoms isn’t much of a stretch for him. Isn’t it interesting that people who consider themselves conservatives evidently don’t even see a need to address such a question? I guess as long as a state legislature passed a law, that suffices to establish a legitimate state interest. He does not deploy any argument against my claim that ordinary people find it perfectly possible to entertain the idea that a law may be a bad law. From such a standpoint, I wonder exactly how Mr. Mulligan can determine that a court decision (or a law) allowing abortion is so wrong that it must be overturned. Of course, I keep forgetting that conservatives seem to have no difficulty in invoking some higher or more fundamental moral doctrine against which to measure the actions of government. Only we liberals are bad guys when we do it.
Finally, Mr. Mulligan employs a version of a slippery slope argument when he suggests that we liberals would sing a different tune if ‘prevailing standards of decency shift’ and we find ourselves at the mercy of a judge with moral views different from our own. Well, what do we do now, when this is often the case with the Supreme Court since Rehnquist? We put our kind of politicians in office and hope they appoint our kind of judges. Just as conservatives do. I don’t expect conservatives to share, or even genuinely comprehend, the standpoint from which liberals contend that there are many areas in which the state simply has no legitimate interest in regulating individual conduct. However, if Mr. Mulligan’s conservatism prevails, one thing that is clear is that conservatives won’t have much of a problem with supporting state policies to promote their own moral agendas. And yes, they’ll find judges to help them out.
Re: “I don’t expect conservatives to share, or even genuinely comprehend, the standpoint from which liberals contend that there are many areas in which the state simply has no legitimate interest in regulating individual conduct.”
A police officer friend who had testified in court many times once told me, as I was about to report for my first jury duty, that a skillful attorney could convince me that my white shirt was actually black. This ability was independently verified years later when I read Gulliver’s Travels:
Back in the ‘50s or ‘60s, I read that the public swimming pool of Sydney Australia was declared the legal father of a child. So it would not be beyond the credible that a skillful attorney could transform any argument into a convincing work of art and even get a judge to believe that there is no compelling government interest in any law. [In an only tangentially related profession, some university liberal arts professors argue that human beings can’t really know anything. So how would a judge know?] Take environmental law for example. In the days before they existed, what was the government’s compelling interest? Pollution didn’t hurt the government; it hurt only non-government entities. What about slavery? What was the government’s compelling interest in abolishing it? It hurt only slaves. Public safety laws protect only the public. Etc.
Perhaps my illustrations are somewhat primitive, but they do make the point what a skilful attorney can do. An additional observation here is that he can do it without even convincing himself.
reply to sedonaman,
And how, exactly, are your amusing examples supposed to constitute some sort of argument against my position? I gather that, as a conservative, you subscribe to the position that state interest needs no justification. It simply is, like the weather.
Maybe sedonaman or some other conservative on this site knows the answer to my question: just when was it that conservatism parted company with the natural law tradition of the West it used to celebrate? Or, when did conservatism come around to the view that exercises of government power over individuals required no particular justification apart from the sheer fact that they took place?
Re: “And how, exactly, are your amusing examples supposed to constitute some sort of argument against my position?”
Why do you answer a question with a question?
Mr. Mulligan, attempting to play ‘gotcha,’ supposes there is a contradiction between liberal views of individual freedom and liberal policies such as regulation of food ingredients, seatbelt and helmet laws, and ‘sin’ taxes.
You are not arguing modern social liberal views of individual rights – you are arguing libertarian views of individual rights. Modern social liberalism rejects individual rights in favor of group rights; negative rights for positive rights. The laws I mentioned are indeed a contradiction with the libertarian concept of individual rights.
Some familiarity with state laws and local ordinances in 19th century America would show Mr. Mulligan that courts sustained a wide range of state and local regulations regarded as necessary to protect the health and safety of the public. Often subsumed under the ‘police powers’ of government, this regulatory regime predates the emergence of the sort of modern liberalism
You must have gotten confused – I didn’t say that state and local regulations were a modern concept or that they were illegal. I said that you, as a self-declared liberal, are among a group that pushes for such laws, which infringe (more like rape) individual rights. Which is a bit ironic. Since you are casing yourself as a crusader for autonomy, it seemed to bear mentioning.
self-styled conservatives seem to think that there are only two options: upholding the letter of the law or judging on the basis of some purely personal and arbitrary basis
Correct. Was there a third alternative that you intended to introduce, or were you just recapping for us?
The result is the statement that a judge should not rule against the moral wrongness of slavery if slavery is legal under the Constitution. In other words, Dred Scott was rightly and constitutionally decided. This makes the dissents of Justices Curtis and McLean in that case instances of legal relativism.
Correct again. The function of a judge is not to decide what is moral and immoral, it is to decide what is legal, or permissable, under the law. Our constitution was built on a compromise that allowed slavery, consequently slavery was permissible under the law. Dred Scott was decided correctly given the state of the constitution and the law at that time. The majority was correct – the minority was engaging in legal activism based upon their conception of morality. There is a defined process for changing the constituion – it is called the “amendment process”. 8 years after the Dred Scott decision, the amendment process was properly used to change the constitution, making slavery illegal. A justice who ruled in favor of slavery AFTER the 13th amendment would have been engaging in the same type of activism that the justices who ruled against slavery were engaging in BEFORE the 13th amendment. Activism is activism whether it is undertaken for the “good” or the “bad”. And that is why it is an illegitimate practice. If activism is proper in ruling against slavery even though slavery is legal, it is also proper in ruling for slavery even though slavery is illegal. The law itself then becomes irrelevant, because it is superceded by the opinion of a judge, which defeats the purpose of having it.
So, the passage of the 13th Amendment changes everything. What is right? Well, it’s a matter of dates.
You are confused again. What you meant to say is “What is LEGAL? Well, it’s a matter of LAW.” Judges do not decide what is right – they decide what is legal. You are addressing questions of philosophy, not questions of law. Judges are not supreme philosophers whose dictates on morality are binding for society. If they were, it would be impossible for a Christian, a Muslim, and an atheist judge to serve on the same court and ever reach a coherent decision.
I note that Mr. Mulligan manages to dodge most of my points. He does not, for instance, rise to the discussion of what legitimate state interest might have been involved in Connecticut’s ban on condoms.
Most of your points were tangential and irrelevant to the actual matter being discussed, which to repeat myself, is the difference in the function of a court and the law between a legal conservative (or constructionist) and a legal liberal (or activist). To address your question on the state’s interest in condoms though, it’s really quite simple to explain using your own logic: The judges in Connecticut believe that using condoms is morally wrong, and consequently it is their moral obligation to rule that condom use is illegal – even if the law says that condom use is not illegal. That’s the function of a judge. If a judge feels that slavery is immoral, he is obligated to rule against it, regardless of what the law says. If a judge feels that condoms are immoral, he is obligated to rule against it, regardless of what the law says. No further justification is necessary. Do you see now why your philosophy legal relativism and judicial activism really kind of sucks when the all-powerful moral arbiter holds a different view of morality than you?
He does not deploy any argument against my claim that ordinary people find it perfectly possible to entertain the idea that a law may be a bad law.
Well, you got me there. I didn’t want to confront the staggering profundity of that idea, but if I must, here is my argument: Gee, no sh*t?
I can think of a dozen laws off the top of my head that are “bad laws”. If a law is bad, you overturn it. If it is unconstitutional, you challenge the law in the Supreme Court. If the constitution itself is flawed, you amend it. You don’t pretend the law doesn’t exist and enforce it selectively at the discretion of a judge.
From such a standpoint, I wonder exactly how Mr. Mulligan can determine that a court decision (or a law) allowing abortion is so wrong that it must be overturned.
I wasn’t aware that I had made that determination. You must be psychic!
I do indeed believe that abortion is both immoral and unethical. Therefore, by your reasoning, that law is “bad”. If I can find 5 judges to agree with me, it doesn’t matter what the law says – judges are arbiters of morality, and abortion is immoral. Case closed. I could construct an argument based on federalism, states’ rights, and the constitution, but none of that matters anyway.
I keep forgetting that conservatives seem to have no difficulty in invoking some higher or more fundamental moral doctrine against which to measure the actions of government. Only we liberals are bad guys when we do it.
The actions of government and the actions of judges in applying the law are completely, totally, fundamentally different areas of discussion. As usual, you are intentionally conflating disparate subjects in order to conjur hypocrisy where none exists. Invoking Objectivist ethics to argue that, say, government confiscation of private property, is immoral is a lot different than a judge ruling that the establishment of a national religion is legal even though the constitution specifically forbids it simply because he is ruling based on his concept of morality instead of the letter of the law. When you give judges the discretion to rule contrary to the law based on what is “moral” or “right”, the slope isn’t just slipper – it’s a teflon-coated ski jump.
Finally, Mr. Mulligan employs a version of a slippery slope argument when he suggests that we liberals would sing a different tune if ‘prevailing standards of decency shift’ and we find ourselves at the mercy of a judge with moral views different from our own. Well, what do we do now, when this is often the case with the Supreme Court since Rehnquist? We put our kind of politicians in office and hope they appoint our kind of judges. Just as conservatives do.
This is a bit of a false comparison because of the differing legal philosophies of the conservative justices on the court. The judges with whom you disagree you disagree with precisely because they are not liberal politically and activist judicially. You as a liberal are subjected to rule by a constitution that you despise when judicial conservatives and originalists sit on the court – not to the arbitrary moral dictates of any 5 given people without regard to the law.
I don’t expect conservatives to share, or even genuinely comprehend, the standpoint from which liberals contend that there are many areas in which the state simply has no legitimate interest in regulating individual conduct.
When the areas in which the state simply has no legitimate interest are determined on a completely arbitrary, philosophically and morally inconsistent, and virtually universally self-contradictory basis, the problem isn’t with the people who cannot comprehend it – the problem is the incomprehensibility of the ideology.
In the same way that certain religious conservatives cannot comprehensibly explain why pornography should be banned, but religious expression protected, liberals run into a bit of a snag when they talk about cherished civil rights and individual liberties while they simultaneously advocate government administration of the internet, price and wage controls, nutritional content regulations, firearm bans, hate speech laws, or any of the multitude of other molestations of individual rights that “you liberals” hold dear.
if Mr. Mulligan’s conservatism prevails, one thing that is clear is that conservatives won’t have much of a problem with supporting state policies to promote their own moral agendas. And yes, they’ll find judges to help them out.
There’s a lot of things about “my” conservatism that I didn’t know – because I didn’t say them – so you’d probably know better than me. I’d be inclined to think that the judicial philosophy that advocates ignoring the law completely in favor of a morality-based approach determined by individual judges at their sole discretion would be more likely to lead to that end. And here I thought “you liberals” loved democracy – direct democracy, NOW! (rah rah rah!). I guess the “will of the people” isn’t so important after all.
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