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January 22, 2006

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The Law Fairy

Kimball, thanks for the compliment. I understand the hesitance a lot of people feel to embrace a race-and-gender-based critique of demographics, so I'll try to clarify why I feel that way.

Roach, this is also in response to your post -- I won't bother responding to your comments about the Crusades and the Inquisition, which I strongly hope were snide rather than sincere.

I will say that I don't think I would be happy if we killed all the white people, as I'm white myself. I don't think people can be happy when they're dead, though I admittedly have no experience with this to support it with an argument.

Roach, you're right to criticize my statement for being conclusory. I didn't back it up with an argument but since it's provoked a negative response I'll try to do that now.

You may or may not be familiar with the phrase "white blindness" -- it's used in critical race theory to describe the inherent lack of understanding experience by white people of the conditions faced by minorities. To use an example frequently cited in the textbooks, when a white person looks in the mirror, he doesn't see a white person. He sees a person. When a black person looks in the mirror, however, he sees a black person. People of different races experience different worlds -- for white people, this is not noticed because in our white-majority society, being white is the "norm." Therefore, the average white person's experience is non-deviant from this norm; thus, no reason exists to contemplate race.

For the average black person, however, any variety of reasons may exist to question the dominant racial paradigm. Race relations have come a *long* way in this society, but we're nowhere near having eradicated racism -- particularly since terrorism has largely succeeded in its purpose (i.e., provoking terror), turning us against our neighbors once again, just because of the color of their skin or the name of their church.

A black child and a white child could grow up in the same neighborhood, attend the same school, and go to the same college -- but they will have very different lives. While insulated neighborhoods may be colorblind in the best sense of the word, and the treatment of the two may in limited situations be equivalent, the second they step out of their idyllic childhood homes into the real world, they'll have different experiences. In the average convenience store, black kids and white kids are treated differently. In department stores, there's an unwritten policy of watching nonwhites with a more suspicious eye (doubt this? Go work for a department store, like I did for several years in high school and college).

I don't even need to argue that women and men are treated differently in their daily lives. Sexism is even more socially acceptable than racism. Some people go as far as to call it "old-fashioned" or even, most insulting of all, "chivalrous." In case you're wondering, yes, I let dates pay if they wish and I let them open the door for me. And, yes, my dates are male. Hopefully this will help to ward off any unnecessary ad hominem attacks.

The upshot of all of this? White men, white women, black men, black women, Asian men, Asian women, latino men, latina women, and men and women of every other nationality and descent imaginable have very different perspectives and experiences due solely to their race and/or gender. Obviously we can't have a court that is completely representative. But these different perspectives matter. If white men hold the majority in the court, what do you suppose happens when they hear a case that implicates racial and/or gender stereotypes? They don't see the problem the same way a women or a minority sees it. Obviously, there are thoughtful, sensitive, empathetic white men. Some of them may even be on the court. But look at it this way: who would you consider a more credible source when discussing, say, politics in Britain -- someone who's lived in America her whole life and reads articles about British politics, or someone who has lived in Britain for years?

You might say that these perspectives simply don't matter. I'm honestly not sure how to convince someone of this opinion that they do. This is precisely the problem with majoritarian politics -- the majority has the ability and the option to simply shut its eyes and ears to the problems of the minority. "If it doesn't hurt me, it doesn't matter." The moral answer is simply that it does. The *Christian* answer is simply that it does. To ignore the injuries of others on an institutional level is reprehensible.

Obviously, white men can pay attention to these problems. But it's harder for them to do so. They have to attempt to take themselves outside of their realm of experience. They have to try to think with another voice. Some people can do this. Some can't. And, frankly, the older you get, the harder this is to do. Roberts, at 50, is the youngest justice. I would venture a guess that most of the justices are pretty set in their thoughts and opinions. If we limit the extent that alternative voices and the alternative experiences of women and minorities are represented on the court, we limit what the court can do to protect them. This is why it's important to have a greater representation of women and minorities on the court.

Although the judiciary is, in the abstract, supposedly insulated from politics, we can look to another branch of the government to see that such concerns operate without criticism (that I'm aware of). The Senate is composed of two senators from each state. Why? Shouldn't a qualified senator be able to make good decisions regardless of where he or she is from? This setup is based on the fundamental understanding that where you come from has an impact on who you are. We see it as somehow "unfair" or "unequal" to give one state greater sway in the Senate simply because it is more populous. A state with more senators would have greater sway because, in the aggregate, we believe that people are loyal to their roots. Who you are and how you got there necessarily influences how you see the world and how you act.

Obviously, this is not a perfect analogy, as the actual operation of the Senate is muddied by contributions from constituents and interest groups -- but a nod to historical underpinnings and the ideals of the founders shows that this understanding of the Senate is actually fairly apt.

Roach

Your Senate analogy is interesting, but flawed. Legislatures are supposed to represent diverse interests of diverse communitise. The Senate in particular is a nod to the principle that every state in the union is equally sovereign and entitled in one of the legislative branches to have equal representation.

Judging need not be "represenative" because it's not supposed to be an expression of interest, power, and the like. It's supposed to be a technical exercise, with an eye on the long-term, and insulated from parochial interests by the benefit of life tenure.

Now, I think it's probably correct that background has some limited impact on how judges view cases, but there is no way to have the right kind of diversity. For starters, all the justices are elites, lawyers, high IQ, highly educated, often from the coasts, etc. etc. More important, there are so many infinite variations of which interest is on one side or another of a case, that it would be impossible to have a properly representative court. Finally, if you dispute the possibility of technically, correct legal answers there is no obvious reason to have courts with judges at all. After all, they, like representatives in a legislture, are just one more group expressing raw power interests in society.

I don't by that last point. I think there is such a thing as a techincal legal answer. I depart from the realists in this regard, and think that in the judiciary it's uniquely unimportant that the bench is represenative. Coming from a state with an elected judiciary, I can say that too great of a familiarity with the people and the bar undermines judicial decisionmaking.

Deborah Spaeth

ADR

" don't really know what else to say given all of this bizarre commentary "

Gee, ADR, you could say, "I was misleading everyone here when I wrote that 'she was condemned as "mediocre" because she chose to go a local law school and excelled in representing commercial (gasp) clients as opposed to writing text books.'"

Then we would know that you are interested in honest discourse.

Miers' nomination was dropped because she WAS mediocre when it came to her understanding of constitutional law and when it came to performing in her "screentest" and when it came to persuading the fundies she would do their bidding.

Her choice of a non-Ivy law school and her well-regarded career as a corporate attorney were not the reasons she was "condemned."

Consider yourself educated, ADR. Stop reciting the script.

Deborah Spaeth

Roach

"Out in real America, most of us are more concerned with skill, honesty, and integrity than in the demographic make up of the court."

If our elected Representatives had skill, honesty and integrity then they wouldn't be putting people on the Supreme Court for the sole purpose of overturning past precedents that the majority of Americans approve of, and they wouldn't be coaching the nominee to lie in response to questions about those precedents.

The big joke is that the same Republicans who engage in this sick little sham hunt far and wide for judicial decisions counter to their interests so they can accuse those job of being "activists" or pawns to politically correct interest groups.

See, e.g., recent discussions here on decisions relating to the teaching of creationism in schools and the constitutionality of school vouchers if you are confused about any of this.

Scout

Wasn't the law overturned by Roe one that was instituted by majoritarian politics? If it's so terrible that a president would appoint a justice to overturn a precedent favored by the majority of Americans now, then why wasn't it terrible in Roe that the court overturned a law favored by the majority of a state? Why does the majority's opinion matter now and not then?

The answer, obviously, is the Constitution provides safeguards in our democracy to protect minority interests, and the Court in Roe held that a law infringing on a right to abortion, instituted by the majority, was unconstitutional.

But the problem with that is, I've read the Constitution many times, and it doesn't say a damn thing about abortion.

Or are judges just supposed to use their imaginations and divine the great mystical "natural rights" from thin air, because the uneducated majority got it wrong?

If that's the case, then maybe the uneducated majority is wrong to support Roe now. If a bunch of red-neck, bible-thumping, moon-shine brewing rubes could screw it up before, then why can't a bunch a strung out, sniveling pseudo-intellectual hippies screw it up now?

And if that's the case, then why not get rid of the president, Congress, the Constitution, state legislatures, etc., and just pick the top graduate from the top 9 ranked law schools, put them in ivory tower, and let them run things?

Or maybe as a nod to democracy, we could make the 9 super geniuses somewhat demographically representative. You know, 5 women, 4 men, one black, 3 hispanics, a muslim, a jew, a couple catholics, an atheist, a butcher, a baker, a candlestick maker, and partridge in a pear tree.

The Law Fairy

Roach, I think you've isolated where our perspectives diverge. The problem with a view of the law as unitary and unchanging is that it doesn't allow for improved understandings. This view of the law is considered legitimate in our society and is embraced by people like Justice Scalia.

I disagree with this view, however. I'm attracted to the idea that at least part of the job of the judiciary is to protect minorities from the tyranny of the majority. This fits with the whole idea of checks and balances: our executive and legislative branches are elected by majorities of one ilk or another -- the judiciary is more removed from majority interests (though, at least in today's world, certainly not totally). Interestingly, going back to my admittedly imperfect Senate analogy, back in the day the Senate was also a step removed from majoritarian voting.

Obviously this paradigm fits with a view of law as Unchanging Law. But, pragmatically speaking, it also fits quite well with the view I prefer. That is to say, it makes a lot of sense to suppose that the judiciary is nominally politically insulated because it needs to balance out the majority.

This view is also the more workable one. A Scalian (my word, but I rather like it) originalist approach does not adequately account for changes in the law in, for instance, the arena of free speech. If the law, in order to really change, requires a constitutional amendment in every case, we would either have an unstable government structure bordering on anarchy, or a hopelessly stagnant state of law. Neither is desirable.

If, then, the Constitution is to be *interpreted*, rather than merely applied, a jurist's background does matter. Obviously, reasonable people can disagree as to the best method of interpretation, but a pragmatic view that the law doesn't have One Universal Meaning (or at the very least, a realistic view that that Meaning is unlikely to be properly realized) compels the conclusion that *how* justices see the world matters to this interpretation.

The Law Fairy

Scout, I think justices are required to be human.

Not a hundred percent sure on that one, but I think it's a pretty good guess.

Deborah Spaeth

Scout

"Or maybe as a nod to democracy, we could make the 9 super geniuses somewhat demographically representative. You know, 5 women, 4 men, one black, 3 hispanics, a muslim, a jew, a couple catholics, an atheist, a butcher, a baker, a candlestick maker, and partridge in a pear tree."

Okay so you killed the strawman and put him in a rocket and sent him to the moon. Congratulations.

Women are 50% of the human race. Would it be too much to ask that they are, say, 30% of the Supreme Court? Or maybe just 2 out of 9. You know, kind of like how it is right now.

I am confident there are plenty of qualified women willing to serve on the Supreme Court.

Of course, maybe it's difficult to find highly educated women who support giving control over their reproductive organs to their husbands.

Do you suppose the fundy-coddling Republicans are aware of this problem? Is it possible that is why the fundy-coddling Republicans appointed a guy who once belonged to the White Man Preservation Society in Princeton?

Scout

Sorry, Law Fairy. By "partridge" I meant Danny Bonaduce. I really think he's the man for the job. He'll have this whole domestic spying, abortion, etc. thing solved by the end of the week, and we'll all be singing "I think I love you, so what am I so afraid of..."

Deborah Spaeth

Scout

"The answer, obviously, is the Constitution provides safeguards in our democracy to protect minority interests, and the Court in Roe held that a law infringing on a right to abortion, instituted by the majority, was unconstitutional. But the problem with that is, I've read the Constitution many times, and it doesn't say a damn thing about abortion."

Isn't that weird? Especially given how "obvious" it must have been to the framers that single-celled human embryos are miniature "beings" with inalienable rights.

Perhaps the framers had some sort of primitive belief that female humans were second-class citizens of the United States at best, whose interests and rights were to be decided solely by males.

Maybe that's why the framers -- all men -- didn't mention women in the Constitution, scout.

Yeah. Maybe.

The Law Fairy

My bad, Scout. But might him bringing in a pear tree violate the Establishment Clause? I mean, it's part of a Christmas carol and all, which means it's kind of vaguely religious, which means probably illegal.

Deborah Spaeth

"By "partridge" I meant Danny Bonaduce. I really think he's the man for the job."

Another Italian-American and Catholic?

I don't know what Danny's position on abortion is. But his brother, John, has written a Requiem for the Unborn.

http://www.the-tidings.com/2004/0116/prolife.htm

Scout

Debbie:

I'm fine with efforts to have a more diverse representation of the populace on the court, and there are certainly women as qualified as Alito. Frankly, I was surprised and disappointed it wasn't a female nominee.

My frustration is your effort to selectively decide when majority opinion matters and when it should not. I think the Constitution is pretty clear on it (though reasonable minds can differ on this), and I think clearly, there's nothing in the Constitution protecting a right to an abortion. If you want to get the votes to amend the Constitution to get that right secured, god speed.

As far as highly educated women handing their reproductive organs over to their husband, no, I don't expect you'll find many of those. But I guess those husbands are just ridiculous for wanting to at least have some kind of input on the decision of either having their offspring aborted, or having to raise/pay child support for that offspring for the rest of its life. Apparently, this idea was so ridiculous, that a law giving men a chance for input, instituted by the majority, was struck down as unconstitutional. So why can't I just give the bird to the majority now, put in my wacky right-wing justice, and take it back? Then we'll wait for the backlash, you'll put in your wacky left-wing justices, and around and around we go. And as for the Constitution, hey, we'll bring it up when it's convenient. Otherwise, it sure has a lot of purdy words.

The Law Fairy

So, Scout, is the problem that something must be literally, explicitly in the Constitution in order to be deemed protected by the Constitution? If so, what does the 9th Amendment mean? Can it *have* any meaning under such a narrow interpretation?

Deborah Spaeth

Scout

"My frustration is your effort to selectively decide when majority opinion matters and when it should not."

Huh? I don't decide such things or try to. What are you smoking?

"I think clearly, there's nothing in the Constitution protecting a right to an abortion."

That's nice. As a matter of law, you happen to be wrong and plainly so. But you are entitled to pretend you live on another planet.

"I guess those husbands are just ridiculous for wanting to at least have some kind of input on the decision of either having their offspring aborted"

They have some kind of input. And that input is protected by the First Amendment. Geez, Scout, you're embarassing yourself with your lack of knowledge of these matters. Maybe you should read a book or something.

"Apparently, this idea was so ridiculous, that a law giving men a chance for input, instituted by the majority, was struck down as unconstitutional."

What "majority" are you talking about, scout?

"why can't I just give the bird to the majority now, put in my wacky right-wing justice, and take it back? Then we'll wait for the backlash, you'll put in your wacky left-wing justices"

I don't need a "wacky left wing justice" on the court to protect women's reproductive rights. Any moderate will do. Most Americans support a woman's right to choose whether or not to terminate her pregancy.

You seem to know very little about the country in which you live, scout. I suspect you get your information from cable TV or the radio or from blogs that recite Republican talking points. Don't be embarassed, though. You're far from alone.

Roach

Deborah why are you always so rude and sarcastic? It's really distracting to your substantive points.

Scout

All right, Debbie:

First, women are protected in the Constitution, under the 14th Amendment, along with all under citizens, defined therein. Amendments - that's how we should get the rights we want, not by begging our judges to pretend those rights exist. But the Constitution matters very little anymore.

Second, you're right. As a matter of law, the Constitution protects a right to abortion. But as a matter of fact, I am right. For now, you win. But later, if my wacky judge gets in there and makes up laws just as badly as your wacky judges did in Roe, then bully for me. Why bother trying to convince our fellow citizens of our opinions, or their elected representatives, when it's so much easier to spew out a bunch of bullcrap to "enlightened" judges.

As a matter of law, segregation was legal. That doesn't mean it was ever Constitutional.

Third, I'm sorry, you're right, a man has expressive rights under the First Amendment, to say what he wants. But what does that have to do with a notice requirment for abortion? A lot of good their expressive rights do them ex post facto, when the kid is already dead or the dad is already paying child support.

Fourth, the "majority" I'm talking about is the majority that passed the law in Roe, or the law granting husbands a right to receive notice prior to an abortion of their child. For some reason, the fact that the majority supports Roe matters to you very much. Why doesn't it matter in those cases? I'm sorry, that's right, the made-up constitutional right. Hopefully, Wacky Sammy sets that one straight, just like the court set plessy straight with brown. things change, debbie, sometimes for the best, and sometimes whether the majority likes it or not.

Most Americans opposed abortion at the time Roe was decided (http://www.pollingreport.com/abortion.htm). Why didn't that matter then, but it matters now what the majority thinks?

The answer, little Debbie, is that it doesn't matter. You're right. As a matter of law, I'm wrong. But that could change next year with good old Sammy. And could change back a few years later, with your more "moderate" judges. But you'll excuse me while I mourn the death of our Constitution, and do my little jig that at least one more of the anointed super-genius 9 happens to agree with me on at least one thing. Who knows what fabulous rights they'll make up next!

If I had the inclination, I could cut and paste your quotes, write something meaningless and derogatory, and something like "BWAHAHAHAHAHAHAH! Priceless", pretend its an argument, tell you you're embarrassing yourself and you're ignorant, and then move on. But that would make me a jackass. (I think this paragraph means I already qualify).

That's a funny coincidence about Danny's brother. Who would've thought.

Oh, and as far as what I'm smoking - marijuana. Maybe Sammy can give me a right to that to. I'm sure it has something to do with due process and privacy and penumbrances and all that good crap.

Evinx

I could not believe my eyes when I read this nonsense from Mr. Kimball Corson:

"Aside from 9/11 and the happenstance of what occurred that day, where are the invading armies? While Bush will tell us he has secretly foiled them all, the truth is Bin Laudin seeks a truce: if only we will leave Saudi Arabia and Iraq and moderate our support of Israel, terrorist efforts will cease. His position on what he and fundamentalist Arabs want has been clear for years. So who has and controls the invading army on foreign soil: us or the supposed terrorists. While I admitted this is broad brush, am I missing something major here,. . ."

If this naive logic (and I am being very, very kind here) is symptomatic of the UofC law school graduates, then all that education has lead to being an articulate moron -- no wonder so many people have contempt for lawyers!

Deborah Spaeth

Roach

"Deborah why are you always so rude and sarcastic? It's really distracting to your substantive points."

I'm not always rude and sarcastic.

Why would you devote an entire comment to telling a lie about me, Roach?

The Law Fairy

"If this naive logic (and I am being very, very kind here) is symptomatic of the UofC law school graduates, then all that education has lead to being an articulate moron -- no wonder so many people have contempt for lawyers!"

Wow, Evinx. Condemning as contemptible an entire profession based on your bare disagreement (unsupported by anything substantive in your post, I might add) with one of its members on one issue is a pretty disproportionate response. But clearly it must Kimball who is the moron, having taken part in this discussion since the topic was posted and having backed up his assertions with actual arguments.

By the way, the past tense of "lead" is spelled "led."

Deborah Spaeth

Scout

you'll excuse me while I mourn the death of our Constitution

Go ahead. I think there's a virtual crying room on the Internet somewhere for paranoid fetus-worshipping wingnuts like you.

Who knows what fabulous rights they'll make up next!

Here we go again. Gosh, maybe the Supreme's will say that the families of gay couples who have been ceremoniously joined together by, e.g., the leader of their church, should have the same rights that the government provides to the families of straight people who have been so joined.

That right can be found in the 14th Amendment, by the way.

Scout

I think that's a great question, Law Fairy, on the 9th Amendment, and one I've struggled with. My feeling is that the operative word is "retained". If the people have actively retained a certain right, either in federal law, state constitutions, state codes or regulations, etc., then the Constitution should not be construed to disparage or deny those rights, unless expressly stated otherwise. Thus, unless the Constitution says otherwise, the people may "retain" to themselves whatever rights they like. But they retain them by setting them out in laws, regulations and in existing common law (I realize Roe is existing common law, but so was Plessy. Laws, whether they be statutory or common, good or bad, will inevitably change). If they are not set out, they don't exist. Otherwise, the 9th Amendment really is just a blank check for judges to create rights. I, personally, am uncomfortable with allowing such a blank check, because I have at least some control over my legislators, and believe that rights they create have at least some legitimacy and chance for enforcement, because they are (ostensibly) supported by the majority. As such, the people may, within the bounds of the Constitution (and from my reading, the Constitution says nothing on the following), make abortion legal or illegal, same-sex marriage legal or illegal, etc.

It is for this reason that I would hope the selection of judges for the Supreme Court would be largely apolitical, because the process of interpreting law should be, to the largest degree possible, mechanical and deferential to legislative and executive action, unless otherwise expressly constitutionally restricted.

I do agree with you, however, that the interpretation of law is affected by the personal backgounds and experiences of judges, for better or worse, and that is why I think it desireable to make an effort to promote diversity on the court, which I believe can be done without sacrificing excellence, to ensure, to the extent possibel on a 9 person panel, that a broad range of personal experience and backgrounds are represented when interpreting the law.

Deborah Spaeth

Scout

Why didn't that matter then, but it matters now what the majority thinks?

It doesn't matter now, scout. Didn't I already chastise you for attacking strawmen, scout? Or was that Roach?

"Third, I'm sorry, you're right, a man has expressive rights under the First Amendment, to say what he wants. But what does that have to do with a notice requirment for abortion?"

Hee hee. You amuse me, Scout. The First Amendment gives a woman the right to say what she wants, too.

Think about it.

Deborah Spaeth

Scout

As a matter of law, segregation was legal. That doesn't mean it was ever Constitutional.

Of course segregation was constitutional. And it still is. Have you tried using both restrooms in your favorite restaurant lately? A little civil disobedience might help you to realize your dreams, scout.

Scout

Debbie:

Nothing you just wrote was an argument. It was just gibberish. Of course, you'll cut and paste this, write more gibberish underneath it, and pretend that's an argument to, and tell me I'm ignorant and embarassing myself, and find creative ways to use "x" in swear words.

And whether or not the right for same-sex couples to marry is protected by the 4th Amendment depends on (i) if you think marriage is a privilege, immunity or essential to life or liberty (seems like it fits in there - but this is the fuzzy part of interpretation, which requires judicial restraint, and, I might add, makes diversity on the court desireable), and (ii) how you define marriage. I say this is a right reserved to the people and the states, and they can decide how to define it any way they want, because the Constitution is totally silent on it. I somebody wants to amend it, one way or the other, I say knock yourself out. For me, marriage seems like the sort of institution best left to smaller communities to define, encourage or discourage as they see fit.

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