I'm not tired enough to sleep, and not awake enough to be genuinely productive, so I figured I'd explain my perspective a bit more on the Supreme Court nomination issue. The last post on the Supreme Court may seem overly abstract in light of the real consequences of the issue at stake here, so I want to address some of the practical issues I think are in the balance here.

There's no question Roberts is not a bad guy, though the same can not be said for all justices. He's not going to inhabit the fringes of some outrageous and fanatical ideology, or act as a covert operative for any person or party. That is, he's clearly not an ideologue, and seems fairly independent intellectually.

On a practical level, the question at issue here is what direction will his appointment lead the country? All this is amplified by the fact that

1) Roberts himself is expected to be a swing vote on many key issues.

2) The administration that appointed him is the most ideological one in recent history.

This is in terms of both foreign and domestic policy. The whole concept of a faith-based initiative speaks for itself, I think. In other important respects, we see policies coming out of the White House that are simply not grounded in fact. The former party line "Global warming needs more study" is a perfect example. The fiscal policy of running huge deficits during a war while pushing through tax breaks is not endorsed by any economic camp known to man. The energy policy is completely hypocritical and irrational. The allegations officially made about factors relating to gay marriage and parenting are not based on reputable scientific evidence.

3) At any rate, the country is clearly at an ideological crossroads, questioning the entire New Deal style of government. This is applicable in terms of the "size of government," responsibilty of the government to provide social protections, and the continued progress of the civil rights movement and its various tributaries. In all of these repects, this nomination is a very key one, in that it may be a significant step in a process that reshapes the judiciary in a way that reflects the reforms going on in the other two branches.

This may end up being the case. Intellectually and practically, however, there are serious compelling reasons to reshape the structure of government away from federal authority on social issues. Philosophically, on the most contested social issues of the day, we are not dealing with issues posessing clear-cut answers or even clear-cut premises. Whatever your views on abortion rights, everyone has to admit it's ambiguous on which side of civil rights abortion falls. I certainly don't think that a couple day old embryo is human life. But the current public debate hasn't advanced beyond essentially a line-drawing argument, and I can't think of any better philosophical criteria with which to frame the issue. Nor has anyone else been able to, to my knowledge. Therefore the question of "the rights of the unborn fetus" is going to remain a live one for many people in the public discourse, regardless of how resolutely the other camp feels to the contrary. Yet abortion is clearly a women's rights issue as well. So whose rights are more important? Answering this question seems virtually impossible.

Or consider the gay marriage issue. It's not clear that marriage itself is a CIVIL right, although government does in effect legally sanction it in conjunction with religious institutions. To me the clause "equal protection of people under the law" doesn't apply, because the law doesn't sanctify marriages, it only determines benefits once they already exist. Someone else might read that phrase differently. Yet federally banning same-sex marriage doesn't protect rights either; it doesn't add, it only subtracts. Again we're left with the open ambiguous questions of "what counts as a right" and then "to whom do these rights apply." At either end, federal rights are unclear, and judicial minimalism is prudent.

In the formulation of Hillary Clinton, abortion should be "safe, legal, and rare." It's been argued that allowing some states to ban abortion will effectively eliminate the option of abortion for the poorest citizens in those states. I tend to think that such a policy would contribute more towards making abortion rare than making it prohibitive. A simple cost-benefit argument leads to this conclusion. Given the availability and cheapness of contraceptives, I don't think it's a stretch that people will respond to cost incentives in this case just as they would for any economic matter. More expensive abortions leads to people adjusting their behavior which leads to fewer abortions. Obviously, there will still be many people who incur the need for abortions despite their economic interest. Let there be no doubt about the fact that this is by no means a completely rational matter. Yet I see no reason why the above scenario would prohibit these people from having abortions.

Awarding federal rights on either of these issues is philosophically dubious, not to mention bound to be extremely controversial given the nationwide level of variance in views. On the practical end, relegating the issues to the states seems like a good solution, albeit most state legislatures are either corrupt, inept, or both.

It's clear the most powerful wing of the Republican party wants to do the same thing to the federal judiciary that it did 20 years earlier with the legislative branch: reduce its size. Ironically, the current president has reversed this trend in the legislative branch, but that's another topic.

There are a lot of reasons to support judicial minimalism. When the courts make a decision we can live with, we chalk up any discord vis-a-vis public opinion to the glorious independent function of the judiciary. When the courts make a decision we can't live with, we call it the action of "activist judges." To be honest, the term activist judge means next to nothing to me. Nonetheless, the term is not indicative of a healthy attitude and relationship to the judicial branch.

As critical as the judicial branch is to the American form of government, there's one thing I think everyone can agree on here: it is also the least democratic branch, although the other two branches are certainly still in the running in this peculiar race to the bottom. Think about it. An elected official has complete power to choose whoever the hell he or she wants, with in many cases no accountability to the electorate, to serve without term limits on a court making decisions according to no standard methodology, the only requirement being the vague "interpret the constitution." The Congress has veto power and the incentive of reelection to ensure accountabilty, but if they keep vetoing judges they inevitably become seen as "obstructionist," regardless of how good the reason or how consistent the rationale.

The judicial branch is an indispensible but also highly imperfect component of government. Any input of the judicial branch has two major drawbacks. Any decision is final, though theoretically overturnable. And the decision is so far removed from the participatory democratic process that it can be fairly characterized as undemocratic. Obviously, these are drawbacks to be avoided if given the option to resolve the issues in a more direct, democratic legislative manner. Hence, Judge Roberts' stated agenda to reduce the load on the federal judiciary is a welcome development to me.

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