JOHN CHUCKMAN COMMENT: OBAMA’S OPPORTUNITY TO APPOINT A SUPREME COURT JUDGE AND SOME OF THE GENERAL DIFFICULTIES IN SUCH APPOINTMENTS   Leave a comment

JOHN CHUCKMAN
 
POSTED RESPONSE TO A COLUMN BY CLIVE CROOK IN THE FINANCIAL TIMES

The real issue in selecting judges for America’s Supreme Court is not the candidates’ ‘left’ or ‘right’ orientation.

The heart of the matter is in whether they are ‘strict constructionists’ concerning interpretations of the Constitution or whether they believe judges’ interpretation, with advancing times and changing circumstances, is just as much a part of the Constitution as the words on parchment themselves.

This bears certain similarities to the Catholic Church balancing the Gospels with tradition, tradition being something which is changeable and varies from place to place.

While this division in views does tend to come down to conservative views versus liberal views, it is not necessarily so. You certainly may believe that interpretation is important and yet be conservative in some of your views.

My own view is that ‘strict construction’ is akin to the Christians who believe every word of the Bible is the literal word of God.

The writers of the Constitution, with apologies to the likes of Tom Delay who used to carry a copy with him at all times like a Testament or donor card, actually overlooked many possibilities and made some genuine mistakes.

The U.S, wasn’t much of a democracy in their day – and many would argue it still isn’t much of a democracy – but essential characteristics of the society have changed a great deal in a couple of centuries. In early Virginia, for example, about 1% of the population could vote, roughly the same percentage as is represented by the Communist Party today compared to the Chinese population.

Of course, even were their handiwork perfect, it would no longer seem so two and a quarter centuries later. The changes that come over time with technology and the economy are profound (which takes us back to the previous column on genetics too).

Just one aspect of technology’s influence on law we see today is the literal melting away of copyright standards with digital material and the Internet.

Still further complicating the judge-selection business is the way some individuals change when they have the appointment, Warren being a classic example.

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‘Empty slogans such as “strict construction” have no meaning whatsoever and are merely code words for following a far right wing agenda, just as “states rights” was once a code word for segregation.’

Sorry, that is rather wide of the mark.

“Strict construction” is certainly no empty slogan: it is precisely one end of a continuum of judicial philosophies in the United States.

Of course, there are few, if any, judges who hold to the extreme ends of that continuum, but you must have a descriptive term for each extreme to mentally place someone along it.

I think it is playing fast and loose with the courts to use the terms “liberal” and “conservative.” Courts are, in theory free of politics. Of course, they are not truly so, but the cause is not helped by openly describing judges in that fashion.

The natural results of strict construction do tend to be conservative, but then America is, and always was (except for a brief time, under and after FDR), a very conservative country.

Thomas Jefferson didn’t even believe the Court had the right to decide anything affecting the individual states, and he was ready at one point for secession over precisely that matter.

That was the absolute zero, if you will, of strict construction, and America has a large population that still regards Jefferson as America’s greatest sage.

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