First Principles

In search of the Unified Theory of Conservatism

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The Liberal Disconnect on Judges

May 26th, 2009 · 1 Comment

Note:  I wrote most of this before President Obama announced his Sotomayor nomination.  Stand by for more on that in the coming days.

A friend of mine from law school recently posted this article from The Gawker on Facebook.  Ordinarily, my friend, although I usually disagree with him, posts interesting and thought provoking links.  Alas, this time, it was a rant against the Supreme Court (or at least its more conservative members) which was as thoughtless as it was juvenile.

But perhaps I shouldn’t have been disappointed after all. It turns out the post was thought provoking in its own way – perhaps not the one which was intended.

The Gawker article is short.  It complains about a decision without actually discussing the legal issues at play, or linking to the actual decision so a skeptic can easily read it for himself (here, by the way).  The blog assumes facts to be true that the court found to not actually be in evidence – an interesting twist considering the entire case turned on the alleged victim’s failure to provide an adequate factual basis for their claim.

But we don’t need any of those things when you have insight like this!

It is also fun to remember that John Roberts, who’ll be the Chief Justice for another half-century or so, is an asshole.

Classy.

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The article is instructive of the view of the courts from many on the left – that the rule of law matters far, far less than whether or not the courts stick up for some perceived victim.  It doesn’t matter that no law was broken, or that no legal civil claim exists.  It only matters that some “unfairness” has been sensed by someone, and that someone should be made to pay.

That’s it.  That’s the beginning and the end of it.

And this simplicity has terrifying implications for any nation which wishes to be one “of laws.”

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Well, maybe there’s a LITTLE more to it than that – I almost forgot rank partisanship!  The Gawker post also includes this whopper:

Thanks to Chief Justice John Roberts—who never met an argument for unchecked executive power that he didn’t like […]

Any supporter of Barack Obama who considers “unchecked executive power” a per se bad thing must be very conflicted indeed.  Why, it’s almost as if all that complaining about George Bush’s “abuse of executive power” had more to do with election year sloganeering than any principled stance on government limited by the rule of law…

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But it was the longer article that the Gawker piece linked to from the New Yorker that really points to this disconnect between complaints over the “rule of law” and the actual defense of it in the judicial context on the left.  This passage boiled it down particularly well:

After four years on the Court, however, Roberts’s record is not that of a humble moderate but, rather, that of a doctrinaire conservative. The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative, and the corporate defendant over the individual plaintiff.

This paragraph simultaneously exposes an embarrassingly inaccurate view of what a “doctrinaire conservative” is (especially in the judicial sense), and a terrible misunderstanding of the role of a judge.

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First of all, Conservatives don’t care about conserving the “existing power relationships in society.”  Ugh!  We don’t even think in those terms.  We care about conserving the Constitutional scheme which has kept us the most free and the most prosperous society in the history of human civilization.

This kind of analysis kind of reminds me of a high school girl who tries to figure out why the boy she likes hasn’t called by imagining why she wouldn’t have called.  She imagines he thinks and plots and second (and third and fourth) guesses like she and her friends do.  He’s just busy playing video games and was too dense to take her hint in math class.  Of course, if you try to tell her that, she’ll probably think you’re part of the conspiracy…

But I digress.  That’s not the really important part.

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The more important part is the very nonjudicial “scorekeeping” that it assumes, as if prosecutors and criminal defendants will always be similarly situated, or that corporations can’t be victimized by an “individual plaintiff.”

Indeed, in the criminal context, since the point of a penal code is not to give a criminal a “fair shot” to break the law and get away with it, and considering the ethical obligations of prosecutors in the first place, it makes perfect sense that criminal defendants will prevail in court less often.

Corporations and prosecutors are entitled to the same protections afforded by the law as anyone else.  Both the powerful and the allegedly oppressed must be afforded equal protection under the law.  The day that companies can no longer rely on their contracts or on the plain language of the statutes which regulate them – just because some judge thinks some plaintiff was treated “unfairly” (whatever that might mean) – is the day we abandon our “nation of laws” completely.

As a perfect example, consider one of the most notorious personal injury cases in modern history – Liebeck v. McDonald’s Restaurants, more commonly known as the the McDonald’s coffee spilling case.  Ms. Liebeck, without question less “powerful” that the huge multinational corporation that is the fast food chain, nonetheless was able to leverage $2.86 million from what we can only assume was an “empathetic” jury.  The injustice of this outcome to McDonald’s is clear to almost everyone, and yet, had this case gone to the Supreme Court and been reversed, it would have been tallied up and tut-tutted by the left as just one more case of those nefarious conservatives siding with “the corporate defendant over the individual plaintiff,” and preserving “the existing power structure.”

A more relevant and important case is the Supreme Court’s ruling in Kelo v. City of New London, where the liberal wing of the court decided that the government could redistribute the home of an ordinary family to a business enterprise, and that somehow that counted as a “public use”.  One wonders, of course, where the empathy was for Susette Kelo from the Justices one assumes President Obama will model his judicial picks off of.

Not that empathy was necessary.  It would have been better had the Justices simply followed the Constitutional protections of private property as they were written in the 5th Amendment.  But it does show what an empty concept “empathy” is when it comes to the judiciary.  And it also shows the absurdity of the assumption that “Conservative” = “Protect the Powerful” and “Liberal” = “For the Little Guy.”

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And so, of course, we come to the now famous Obama Judge “E” Word – empathy.  Obama said this (and has said it many times):

“I will seek someone who understands that justice isn’t about some abstract legal theory or footnote in a casebook. It is also about how our laws affect the daily realities of people’s lives—whether they can make a living and care for their families; whether they feel safe in their homes and welcome in their own nation,” Obama said. “I view that quality of empathy, of understanding and identifying with people’s hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes.”

The law is theory.  It is philosophy.  It’s words on a page in a casebook or a statute.  Those aren’t things to be dismissive of – just the opposite!  Because it’s those things, it is predictable, and we can all know the rules of the game before we play it.

The law only has life and power because we choose to accept it as a society, a choice we can only make freely if we have a constant hand in the law’s creation through our votes and our elected representatives.  Once the interpretation of that law – or even simply honoring it – becomes unpredictable (or worse, optional) based on someone’s feelings or background, our faith is shattered.

And when a society loses faith in the law, people start ignoring it.  Either things descend into anarchy, or people must be forced to follow the law with ever decreasing… gentleness.  Neither scenario is ideal for those who love liberty.

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There is a place for empathy and all that in the making of our laws – but it belongs in the legislature.  If judges can “look beyond” the laws our elected representatives make, especially if those judges are themselves unaccountable to the people, then we are not free.  We certainly would not be respecting or understanding the Constitution.

Sad fact, that, coming from a guy who got paid for teaching law students about that li’l ol’ founding document of ours…

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And that’s the liberal disconnect.  All we heard during the last 8 years was that Bush was “subverting the Constitution,” and that was the fierce moral urgency for change!  But that change brought us a President who openly advocates ignoring the rule of law for the feelings of one unelected and unaccountable judge.

This is what happens when we substitute principle for “pragmatism”, when we shortcut proper procedure for the quick and easy immediate outcome (even if it’s for our own good!) that we can’t get legislatively.

We have the subjugation of individual liberty.  The loss of freedom.  And the total dismantling of the trellis upon which our society has prospered so completely.

Who’s ripping up the Constitution again?

Tags: Constitutional Law · Judges · Lawyers and the Law · Liberals · Principles