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Bench Memos

NRO’s home for judicial news and analysis.

Ideology and Balance



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I’m back from a couple days on the road, and playing catch-up, hence a note about something mentioned here yesterday. I agree with Jonathan Adler that Harvard Law professor John Manning did a nice job debunking the idea of “balance” in his NYT op-ed yesterday. But I still can’t help but think there was something amiss in Manning’s tackling the argument in the way that he did.

Manning is quite right that “the court’s ideological composition” has changed a lot over the years. From this he concludes that there is no “baseline”–no status quo or ideal that isn’t wholly arbitrary. This would be quite true if the Court’s business were to act on anyone’s ideology, including the justices’ own. That may be Senator Schumer’s belief, but it is dismaying (though not at all surprising) to see that underlying premise endorsed by a law professor.

In truth, there is a baseline in constitutional law, even though it is much easier to state in principle than to identify (in some uncontested way) in practice. Mock it as boilerplate presidential rhetoric if you like (and I too have derided its rote incantation at times as uninformative), but President Bush has stated that baseline succinctly: interpreting the law rather than making it.

In reply to the Democrats’ argument for “balance,” Manning, like many others, points to their happy approval a dozen years ago of the liberal Justice Ginsburg to replace the more “conservative” Justice White. “Balance” didn’t trouble them then.

Well, it troubled me then, and I wish that Republicans (I don’t include Manning necessarily, because I don’t know if he is one) would quite citing the Ginsburg confirmation as though a good thing happened on that occasion. What actually happened was that Republicans fell down on the job, and all those GOP senators who preen themselves over having voted for Ginsburg should be ashamed of themselves.

What we got in Ruth Bader Ginsburg was an overtly political judge, all but openly devoted to making the law rather than interpreting it, as a successor to Byron White, whose most distinctive characteristic was that one could almost never tell what his own political views were. Agree with him or disagree, one always had the sense when reading White’s opinions that he arrived at his conclusions by means of a coherent legal analysis, unaffected by ideological considerations. Who can say that of Justice Ginsburg?

In short, we traded a judge who understood that the scales of justice were to be used to arrive at a constitutional balance with its own nonideological integrity, for one who views the Constitution as either a tool for or an obstacle to the achievement of her own ambitious ideological agenda.

We do need a balance on the Court–the one set by the Constitution itself, not by the latest accident of the justices’ aggregate or disparate political inclinations.



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