Monday, December 08, 2008

Here come the judges . . .

About three or four days before the presidential election, I posted a piece expressing my disappointment that so little attention had been paid to the impact that a McCain or Obama presidency would have on the composition of the federal courts, with the Supreme Court positioned at the apex. Two weeks ago, I posted another essay on the courts, this time spending more time talking about the forthcoming shift in the power circles underneath the political actors responsible for choosing and confirming federal judges. In addition to mentioning the obvious -- that Obama's judges will be, at minimum, centrists and, at best, genuine liberals unashamed to admit that the Constitution is not fixed in time and that judges should bring their power to balance reason and politics to determine law's contemporary meaning. No one seriously contests anymore the false objectivity of originalism, or what might be more accurately called constitutional fundamentalism, as legitimate intellectual tool to decide the meaning of the Constitution. Maybe, just maybe, the American people can have an honest conversation about what our Constitution should mean, given the social and political context of our times. Sort of, you know, like the Wizard-of-Oz moment we're having right now over the discovery that our "free market" isn't now nor has ever been really free. Markets are a creation of law, and law is the creation, for the most part, by those with social, economic and political power.

But I doubt it.
This morning's Washington Post contains several articles on the topics I just mentioned above, all of which express some, at minimum, disbelief that President Bush's judges have turned out to be -- well, there's no other way to say it -- conservative. There also seems to be some suspicion that Barack Obama will apoint judges who lean to the left, although Obama, when asked, claims he will have no "litmus test" for his judicial nominees.
And you can be he won't as long as they're all pro-choice, pro-affirmative action, pro-civil rights claims, pro-labor, willling to concede that some criminal defendants might be entitled to the presumption of innocence, that not every federal park should be turned into a parking lot and believe that Congress should have broad power to regulate the economy.
Since I can't figure this stuff out for myself, even though I teach and write about American constitutional law and people that shape it, largely because I have never constructed a successful predictive model explaining why the law moves this way or that way, or why this judge or that judge decides cases in such-and-such a way, I am grateful that so many experts make themselves available to reporters writing stories such a these. Other professors, more learned (pronounced: ler-ned or learned? I know but won't tell) than myself, are pointing out that Obama has a huge opportunity to shift the direction of the federal judiciary and that he will need to appoint decidedly different judges than George Bush to do so.

Or: a (fx>\\^~) * ( fx + fy = fz) % b to the third power (45-123) + 1793=!% - over
b (ghj) /\/\<>/\>/< class="(199">x) - zip code - Giant membership number

But we should be careful in making such a brash prediction that a more liberal president who happens to have taught constituitonal law for a number of years at the University of Chicago with such colleagues as Geoff Stone and Cass Sunstein might appoint more liberal judges. Further research is needed, as is a generous grant to underwrite such an important topic. If I have learned anything in the roughly 25 years I have thought, written and talked about this stuff, it is that I am not capable of offering a meaningful opinon on what I do without the assistance of the true experts in the field.

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