Bush and I Agree on One Thing

We agree that the Supreme Court is very important.

“The lesson is clear,” Mr. Bush said. “Judges matter to every American.”

That is about it. What George W. Bush wants in his federal judges is exactly what he claims to oppose, activist judges. He just wants them to act out of his side of the ideological sphere. So when he says things like this,

President Bush traveled on Monday to Ohio, a vital state in the presidential election, to speak in favor of federal judges who will “apply the laws as written” and not try to advance their personal agendas.

I have to say that this is a total and complete joke. Again, Bush could care less if judges are "activist" he just wants conservatives. I think that Bush has zero understanding of how judges in the appeals side of the courts make their decisions. The Times article i am citing contains this little bit of gold,

With the next president all but certain to get a chance to name one or more justices, Mr. Bush said, as he has many times before, that he likes justices who believe “that the Constitution means what it says,” rather than jurists who believe in a “living Constitution” that gives them license to create “new laws and policies without accountability to the people.”

The president used an anecdote about Oliver Wendell Holmes, who just before taking his seat on the highest court in 1902 was congratulated by a supporter who expressed satisfaction that Holmes would be going to Washington “to administer justice.”

“Holmes replied, ‘Don’t be too sure,’ ” the president related. “’I am going there to administer the law.’”

A couple things, the first is that what Bush is talking about liking is an originalist interpretation of the constitution. The dead constitution that means exactly what the drafters meant at the time, 1787. I happen to think that this is a ridiculous way to think. The original constitution included slavery and the 3/5ths compromise. The original constitution contained no provisions for women's rights or the direct election of senators. They even had to go back after a couple years to fix the vp position. The constitution was imperfect when drafted and needed to be changed as time went on.

That is the biggest point. The constitution did protect some rights but the number of rights has already proved to be inadequate as time has passed. If he have to pass a new amendment every couple of years to make sure the right is enumerated it just will not happed and as time passes and society changes technology increases we will end up with fewer rights than when we started. We cannot as Bush seems to think divorce justice from the law. That he seems to think that is ok tells you all you need to know about him.

Bush also seems to wish to pretend that judges make all their decisions based on the language of the statute. That is simply not true. Almost every judge on the appellate level makes decisions with the consequences in mind. To simply apply the language of the statute, which may not even be clear, may lead to absurd results and few judges like that. That Bush would use an anecdote about holmes is actually pretty funny because holmes in his later years was very much a legal realist. he is famous for saying,

"The life of the law has not been logic, it has been experience."

Holmes is rejecting what bush is advocating which seems to me to be some type of legal formalism. Legal formalism should be a totally discredited philosophy. There are no easy syllogisms no major premise without bias. For Bush to advocate such things is absurd. The law is always a matter of interpretation and the underlying principle matters. Think about this question, which should always be asked when talking about judicial decision making, could i have gotten to Brown v Board? Very few people would come out against Brown yet many people hold a philosophy that, if applied, would not allow for such a decision.

I am not a fan of judicial nominalism where the judge simply makes policy whenever he feels like it. I do believe that at most policy making should be a very rare occurrence and should always favor the expansion of rights rather than the reduction. People will be happier with courts for increasing their rights even though they are unelected but will be very upset when the unelected take them away.

Bush likes to pretend that judicial decision making is a straight forward and easy process, its not. It can be very sloppy and very messy. Every judge has a puke test where no matter the law they will bend it into a pretzel to force a particular outcome. For Bush to pretend he does not want an "activist" bench is absurd.