Saturday, May 02, 2009

Souter's Replacement: Emphasize Quality or Emphasize Politics?

I do not understand legal reasoning. Oh, sure, there's lots of it that you can understand merely by paying attention, but as with all types of specialized reasoning, there are bits you need to be in on. They have certain presuppositions and appeal to certain principles, and if you don't know what they are or have to assimilate them on the fly, you can't focus on and understand the crucial details. It's not that it's in principle impossible for the layperson to pick up e.g. Brown v. Board and understand it...but it'd take lots of smarts to get a broad, deep understanding of what's going on without some prior understanding of the law.

I say this, ahem, on the basis of my two--count 'em--undergrad con law classes. Bow down afore my vast book learinin', b!tches!...

Anyway, what I said above is likely to at least glance off the vicinity of the truth.

The point is that I'm ignorant enough about legal theory and legal reasoning to be able to be honestly neutral about, say, the role original intent should play.


So when it comes to the inevitable question:

When Obama chooses a replacement for Souter, should he emphasize qualifications (intelligence, objectivity, depth of understanding) or politics (commitment to apparently correct (i.e. roughly liberal) conclusions)?

I've gotta come down on the side of the former.

I only want to advocate liberal conclusions to the extent that they're right. I want a SCOTUS that is going to crank out reasonable conclusions. I want a SCOTUS such that it will almost always be silly and embarrassing for me to presume to second-guess them. I want a SCOTUS that's never going to produce reasoning so shitty that even I can identify it as such after only a reading or two. (So, for example, I want a SCOTUS that will not produce anything even vaguely like the travesty of Bush v. Gore.)

I do not want a SCOTUS that will produce liberal conclusions on the basis of contrived reasoning. I trust the system, I trust the Constitution, and I trust the better sort of supremes (e.g. the non-Scalia types) more than I trust my own puny reasoning powers. (Even though I realize that it was probably only contrived reasoning stretching for liberal conclusions that got us Roe v. Wade, a conclusion of which I approve...so this position is not without its problems...)

I realize we're facing a court that's been stacked with people specifically picked because they were young, card-carrying members of the Federalist Society. I don't think it's crazy to think that Obama should seek balance by picking someone as liberal as e.g. Thomas is conservative. But I don't think this is the optimal course of action.

I've only recently come to realize how much of my life is governed by faith (though not blind faith). One of the things I've got faith in is roughly the proposition that, by reasoning as well (including: as honestly) as we can, we'll have a better chance of achieving a better and more just society. That faith seems warranted because (a) we do not know it to be false, and (b) if it is false, we're screwed. So it is rational for us to treat it as a kind of (perhaps tentatively-held) presupposition.

So what I'm hoping is that Obama will pick the godd*mn smartest and best person he can--and tie goes to the liberal. And I hereby predict that that's roughly what he'll do. I also predict a good bit of squawking from the d-Kos wing of the party, which would be another sign that he's doing the right thing.

2 Comments:

Blogger matthew christman said...

Sure, of course you'd want the smartest person for the job, but how do you evalutate who that person is? What kind of criteria can you invoke that doesn't boil down to comparing a given nominees rulings with what the evaluator thinks would have been the correct ruling? I'm not trying to be cheaply pomo, I just don't know how the hell you judge a potential justice on a basis of intelligence that doesn't bring your own preferences into consideration.

Beyond that, I'd just point out that the vast majority of justices drift left over time, except for the real principle-less idealogues like Scalia. That data point seems to point to the idea that a liberal point of view and the "intelligent" point of view are close to being with, so finding a left-wing hack to nominate in the first place might be tough.

12:40 PM  
Blogger Winston Smith said...

But Matthew, it just isn't true that we can only evaluate the quality of a reasoner by asking whether or not we agree with his conclusions.

2:22 PM  

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