Jewish World Review June 28, 2005 / 21 Sivan, 5765

Thomas Sowell

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‘Mainstream’ judges | Recent shocking Supreme Court decisions may at least wake up those people who have been saying glibly that the Senate has been spending too much time fighting over judicial nominees, instead of getting back to the "real" issues.

What is more real than the Supreme Court's decision throwing homeowners on the mercy of local politicians, who may want to confiscate their homes and turn the property over to some hotel or shopping mall that will pay more taxes?

However outrageous it may be to make Constitutional protections for property rights vanish by verbal sleight-of-hand, that is unfortunately very much in the "mainstream" of legal thinking, as the majority opinion in Kelo v. New London demonstrated by citing precedents leading in that direction.

Justice Clarence Thomas' dissenting opinion, saying that those precedents that go against the plain words of the Constitution need to be reconsidered, was not in the magic "mainstream." But that shows why the mainstream is itself the problem.

Another outrageous Supreme Court decision this month demonstrates again what is wrong with the mainstream that has been made a litmus test for judicial nominees. Justice David Souter delivered a 5 to 4 majority opinion that set aside the execution of a murderer who committed his murder back in 1988.

Why? Because his attorney apparently did not push hard enough to try to get him off by claiming an unhappy childhood or mental incapacity. Justice Souter did not say that the murderer actually had an unhappy childhood or was in fact mentally incompetent. It was just that a sufficiently clever defense lawyer might have tried those ploys.

Since this defense lawyer was not sufficiently clever for Justice Souter's taste, this meant the murderer had been denied a fair trial — at least as far as mainstream legal thinking goes.

It is one thing to want to make sure that no innocent person gets executed. It is something very different to block executions of people who cannot even claim to be innocent, by second-guessing the strategy of their defense attorneys.

Justices of the Supreme Court cannot possibly know all the things weighed by a particular lawyer in deciding which strategy to use in defending his client. Raising an obviously phony claim to an unhappy childhood or mental deficiency might undermine the defense attorney's credibility in the eyes of the jury, making them even less sympathetic to his client.

There are trade-offs made by attorneys on the scene and more familiar with local juries than anybody in a marble building in Washington can possibly be. Supreme Court Justices themselves are bound to know that. But the liberals among them take every opportunity to put obstacles in the way of executions.

They are in the mainstream.

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The very desperation in political fights over judicial nominees is a clue to what is wrong with our legal system. It should not matter very much which particular man or woman becomes a judge, if that person has the competence and the integrity to apply the laws and uphold the Constitution.

The reason it matters enormously is that, over the past half century or so, many judges have gone beyond their judicial roles to impose their own policy preferences. Since these kinds of judges have almost invariably imposed policies favored by liberals, they have been cheered on — not only by liberal politicians, but also by most of the media, the law schools and the intelligentsia.

Any judge who might restore the Constitution by overturning some liberal precedents is now called an "extremist" or an "activist" — even by liberals who had cheered on liberal judges when they overturned previous precedents.

Judges who take an oath to uphold the Constitution do not take an oath to uphold liberal precedents. If liberal members of the Senate Judiciary Committee try to impose such a commitment on judicial nominees, we can only hope that others will have the sense and the guts to expose and oppose such tactics.

No policy litmus test — "mainstream" or otherwise — should be applied to any judicial nominee by either party, not if you want judges committed to the law, rather than to particular policy outcomes.

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