Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Friday, September 30, 2005

Staying On Message Regarding the Judiciary Pays Dividends

Today's lawyer spam included this survey, which found:

A majority of the survey respondents agreed with statements that "judicial activism" has reached the crisis stage, and that judges who ignore voters’ values should be impeached. Nearly half agreed with a congressman who said judges are "arrogant, out-of-control and unaccountable."

A "crisis stage"?! A majority believe that judges who ignore voters' values should be impeached? Good God!!! I mean, the whole reason that they're the only constitutional officials who are free of the electorate and enjoy lifetime tenure is so that they may "ignore voters' values," particularly as brought to bear by the machinations of those officials elected by and beholden to whatever constituents are theirs. Does anyone know the limitations on constitutional impeachment authority?

Oh and it gets worse:

Fifty-six percent of the respondents strongly or somewhat agreed with the opinions expressed in each of two survey statements:

A U.S. congressman has said, "Judicial activism … seems to have reached a crisis. Judges routinely overrule the will of the people, invent new rights and ignore traditional morality." (Twenty-nine percent strongly agreed and 27 percent somewhat agreed.)

A state governor has said that court opinions should be in line with voters’ values, and judges who repeatedly ignore those values should be impeached. (Twenty-eight percent strongly agreed and 28 percent somewhat agreed.)

Forty-six percent strongly or somewhat agreed with the opinion expressed in a third statement:

A U.S. congressman has called judges arrogant, out-of-control and unaccountable. (Twenty-one percent strongly agreed and 25 percent somewhat agreed.)

I begin by noting that I don't consider the questions to be terribly appropriate for a survey, and they clearly are biased to one issue and do not leave the survey-takers room to contradict themselves (say, by following on with some discussion of Dem talking points and soliciting agreement, or by giving quotes without attributing them to such authority figures as governors and senators, or by dropping quotes altogether and moving the terminology off the ideological sinkhole it stands in as administered), but this survey still scares the s*&t out of me, and leaves me once again shaking my head at the marvelous power of vapid repetition, which the Right has refined to such an art you'd think they were all carrying in their hip pocket the supply-side, free-market, social conservative equivalent of Mao's Little Red Book.

Given that in more rigorous surveys, the American people tend, by a slim majority, to accept many of the positions at the heart of the left's program, especially on abortion, education, the war in Iraq, and even taxes, I can't help but suspect that these results reflect the terminology used, and that there's some sort of Pavlovian thing going on with particular phrases repeated ad nauseam by the minions of the Bush administration.

What's really disheartening is the obvious and widespread ignorance of a spate of recent scholarship arriving at the conclusion that, in fact, the Supreme Court in particular usually is more identifiably responsive to social and political trends than to any identifiable school of constitutional interpretation. Sometimes it races ahead of trends (Brown v. Board) and sometimes it lags behind (Lawrence v. Texas), but it pretty much always gets there, with "there" being the political center, reflective of the country's most dominant values (as opposed to the values most loudly shouted by a powerful minority, which is what one might have thought this whole activist judge malarkey was until one read this survey).

Of course, this all may be explained very simply: "A poll commissioned by the ABA in July from Harris Interactive showed a "shocking" 40 percent of respondents could not correctly identify the three branches of government . . . ." But as long as it's a priority of the Right to ensure mediocrity in education, I suppose they can count on continued success in their double-speak fear-mongering. Anyway, if nothing else, that 40 percent number goes a long way toward implying that a majority of Americans actually have no idea about the principles underlying our tripartite government and the judiciary's peculiar role therein. Of course, being as they are a majority, and Congress exercises a significant check over federal court jurisdiction as a matter of constitutional authority, one would not be foolish to shiver a bit at what lies ahead for the Article III courts.


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