Wednesday, May 12, 2010

Oil spill clean up in three (?) easy steps

These guys are brilliant in their practicality.

Tuesday, May 11, 2010

Experience Necessary to be a Justice

Does a person appointed to the US Supreme Court need to have experience as a judge?

This is a question that we see everywhere. It is a great question. We have a history of great justices with no experience on the bench.

Chief Justice John Marshall is one. Then-Justice-Select Rehnquist is another (Remember he had over 10 years experience when President Reagan promoted him to Chief Justice).

To Kagan's credit, she has more Supreme Court experience than John Marshall or Rehnquist on the day of her nomination. She has clerked on the Supreme Court for Justice Thurgood Marshall and served as Solicitor General. Both are very important positions for the day-to-day activities of the Court. While that experience amounts to no more than a handful of years, it does count.

Her experience as Dean of Harvard Law does count. That is a responsibility known for herding cats. That knowledge of human interaction where human interaction is not known for being a day-to-day requirement is important. If you don't have the experience before you get to the Court, you are not likely to obtain it on the Court. The Court has famously been described as nine separate law firms with each Justice running his or her own independent operation. That does not create a lot of interaction other than via memo.

So is she fit for duty? (Oooo . . . . I didn't mean to step into the military recruiting debate where she refused to allow military recruiters into Harvard Law.) Is she fit to be Justice? If she ascribed to Learned Hand's unique philosophy of progressivism and judicial restraint, I would have fewer than objections than the more recent push to toward activist, Aliniski-ite, socialism empowerment. A Justice with socialistic proclivities common to self-described liberals or progressives is less corrupting of our system with an adherence to judicial restraint. There erroneous decisions are less damaging to the system because they move in smaller steps. It gives time for the body politic to study and react to decisions.

The danger of activist judges and Justices is not their philosophy but their leaps in logic that are nearly impossible to fix. Roe v. Wade's failings are more a matter of leaps in logic than what it proscribes. If a voter hated abortion before the decision, a small step would allow the voter to advocate legislative adaptations and fixes to the decision. If a voter is prevented from changing anything about abortion, hatred and resentment boil over. Consequently, the liberals on the Court have created the anger that they blame on anti-abortion promoters.

If Kagan, like many recent liberal decisions, would push to prevent voters from having a say over religion, prayer, government expenditures (e.g., Kansas City public schools), private expenditures (e.g., mandatory ER treatment without payment), we will have made no improvement over Stevens.