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May 17

Written by: Diana West
Monday, May 17, 2010 3:02 AM 

Robert Conquest, eminent British historian of the Soviet Union, writes in his 2005 essay collection, Reflections on a Ravaged Century:

It has sometimes been suggested that the Cold War was a conflict between two "ideologies," equally (or so it appears) closed. But the Western approach was not an "ideological" one at all. It is important that this confusion of the issue be ended -- if only because it features in low-level comment even now. The Western culture had, in a general way, a view of politics which included policitical liberty and the rule of law. It did not have a universal and exclusively defined mind-set.

A significant point, but one that is lost to us, and not just in "low-level comment." I was reminded of this distinction in considering that Miguel Estrada has written a letter  endorsing the candidacy -- sorry, appointment -- of Elena Kagan to the Supreme Court. Writing at the Weekly Standard, Jim Prevor explains why this letter was "ill-advised."

The letter takes the "high road," Prevor writes, ignoring the "vitriol" directed at Estrada in his ultimately withdrawn appointment to the Court of Appeals during the GW Bush administration, and focusing only on Kagan's "conventional credentials." Prevor writes:

Estrada specifically disavows ideology -- at least within the “mainstream” of current legal thought -- as a legitimate basis for voting against a Supreme Court nominee, [writing,] "I should make clear that I believe her views on the subjects that are relevant to her pending nomination…are as firmly center-left as my own are center-right.”

Further, Prevor notes, "Estrada defends the right of a president to nominate judges he is ideologically in affinity with."

Prevor argues, convincingly, that Estrada has unfortunately and disastrously conceded the disastrous politicization of the Court, citing a 2005 speech by Justice Antonin Scalia to elaborate on the perils of this concession.

Scalia said:

The worst thing about the Living Constitution is that it will destroy the Constitution. You heard in the introduction that I was confirmed, close to 19 years ago now, by a vote of 98 to nothing. The two missing were Barry Goldwater and Jake Garnes, so make it 100. I was known at that time to be, in my political and social views, fairly conservative. But still, I was known to be a good lawyer, an honest man — somebody who could read a text and give it its fair meaning — had judicial impartiality and so forth. And so I was unanimously confirmed.

Today, barely 20 years later, it is difficult to get someone confirmed to the Court of Appeals. What has happened? The American people have figured out what is going on. If we are selecting lawyers, if we are selecting people to read a text and give it the fair meaning it had when it was adopted, yes, the most important thing to do is to get a good lawyer. If on the other hand, we’re picking people to draw out of their own conscience and experience a new constitution with all sorts of new values to govern our society, then we should not look principally for good lawyers. We should look principally for people who agree with us, the majority, as to whether there ought to be this right, that right and the other right. We want to pick people that would write the new constitution that we would want.

And that is why you hear in the discourse on this subject, people talking about moderate… we want moderate judges. What is a moderate interpretation of the text? Halfway between what it really means and what you’d like it to mean? There is no such thing as a moderate interpretation of the text. Would you ask a lawyer, “Draw me a moderate contract?” The only way the word has any meaning is if you are looking for someone to write a law, to write a constitution, rather than to interpret one. The moderate judge is the one who will devise the new constitution that most people would approve of. So, for example, we had a suicide case some terms ago, and the Court refused to hold that there is a constitutional right to assisted suicide. We said, “We’re not yet ready to say that. Stay tuned, in a few years, the time may come, but we’re not yet ready.” And that was a moderate decision, because I think most people would not want — if we had gone, looked into that and created a national right to assisted suicide, that would have been an immoderate and extremist decision.

I think the very terminology suggests where we have arrived — at the point of selecting people to write a constitution, rather than people to give us the fair meaning of one that has been democratically adopted. And when that happens, when the Senate interrogates nominees to the Supreme Court, or to the lower courts — you know, “Judge so-and-so, do you think there is a right to this in the Constitution? You don’t? Well, my constituents think there ought to be, and I’m not going to appoint to the court someone who is not going to find that” — when we are in that mode, you realize, we have rendered the Constitution useless, because the Constitution will mean what the majority wants it to mean.

The senators are representing the majority, and they will be selecting justices who will devise a constitution that the majority wants. And that, of course, deprives the Constitution of its principle utility. The Bill of Rights is devised to protect you and me against, who do you think? The majority. My most important function on the Supreme Court is to tell the majority to take a walk. And the notion that the justices ought to be selected because of the positions that they will take, that are favored by the majority, is a recipe for destruction of what we have had for 200 years.

Taking a page from Conquest, it may be apt to frame this legal conflict in the revised terminology he suggested for the Cold War. That is, Estrada has seen fit to characterize center-left as the mirror image of center-right. But what if "center-left" (wow, what is hard left if Kagan is "center-left"?) is "ideological," namely, defined by a set of concrete political goals to be executed by the state via court fiat, and "center-right" -- those bound by what Scalia calls the "fair meaning" of the constituion as written and democratically adopted -- is non-ideological? It seems that Estrada is talking about apples and oranges -- or, rather, making apples (ideological) look like oranges (non-ideological). 

And, as usual, the non-ideological promises to be no match for the ideological.   

Don't believe me? Then, twenty-plus years after the fall of the Berlin Wall, name the ideology of the President of the United States, and tell me more about that "ideological" victory of ours ....

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