Sunday, November 13, 2005


In an article published in National Review, Robert F. Nagel posits that the problem with our judiciary does not lay with particular trends in constitutional/statutory interpretation, nor does it lay in the fact judges are immersed in a sea of leftist elitism but to the general mindset of the lawyerly class.

Interpretation (in this blog take Interpretation to mean how one decides what the constitution, a given law, or a given contract means), as I have blogged on before can be done in several general ways. It is not necessarily the reading the document and deciphering the text contained in that document. For example, privacy.

In the Constitution there is no explicit right to privacy. Some people then would argue that there is no right to privacy. However, without explicitly referring to privacy the Constitution often defers to individual privacy it is safe to say privacy is an important but unwritten concern of those who wrote the constitution. Now, some of the most controversial bits of jurisprudence are based on privacy. Some will argue this is wrong because there is no explicit right to privacy and others will say the constitution is full of concrete examples of concern for privacy and then generalize from that point. Mr. Nagel believes this is NOT the problem.

According to Nagel the problem is
A third and fuller explanation of judicial activism is so obvious that it is generally ignored. Simply put, people who are put on the Supreme Court are almost always successful lawyers. This means that they tend to be adept at–and therefore not inclined to be skeptical of–the way lawyers and judges think. And the way that lawyers and judges think is one of the basic reasons that we have such a powerful judiciary.
Robert F. Nagel The Problem With the Court National Review Magazine, November 21, 2005 Vol LVII, NO. 21 page 44

Mr. Nagel goes onto explain the power of precedent (aka stare decisis) and how precedent is not just one or two cases. In fact Mr. Nagel argues a fair number of controversial (and prominent) cases could be overturned and the courts would not be altered in any significant way. Mr. Nagel also points out how courts have come to see themselves as arbiters of legitimate (and the degree of legitimacy an interest may have) vs. Illegitimate government interest. Another consequence of lawyerly tendencies has (in Nagel's view) elevated the court to the predominant role in our government.

What then do we look for in a potential justice who properly understands the role of the courts? is necessary to look for those lawyers who are confident enough and independent enough to challenge established patterns of though and to resist deeply ingrained instincts.
Robert F. Nagel The Problem With the Court National Review Magazine, November 21, 2005 Vol LVII, NO. 21 page 44
Mr. Nagel know of tow such individuals and names them. They are not potential Supreme Court nominees they are two sitting Supreme Court justices, the ones vilified by the left Justices Scalia and Thomas.