The Corner

Law & the Courts

Judging: An Old Story

Once, when Ronald Reagan was running around trying to be president, Mike Deaver went to him and said, “Governor, I think it’s time we had a new speech. We’ve been giving your current speech over and over.” Reagan said, “I like the speech, Mike. You get me new audiences.”

I’m going to tell a story I’ve told over and over — but perhaps there are new readers who haven’t heard or read it yet.

Years ago — it was 2003 — I was at an Upper East Side dinner party. The nice thing about going to these things is that, no matter how painful they are, you have journalistic fodder for a long time to come.

The Supreme Court had just ruled on a Texas sodomy law. Everyone was celebrating the decision. The Court had overturned the law. My hostess asked me what I thought (basically).

I said, “I admire the dissent of Clarence Thomas. He said that the law was dumb, and that, if he were a Texas legislator, he would vote to overturn it. At the same time, he could find nothing in the Constitution that forbade Texas to make the law.”

My hostess did not look at me with disagreement or contempt. She looked at me with confusion and disbelief. Who could hold a view such as mine or Thomas’s?

If you wear the black robe and wield the gavel, you have the powah, baby. And you use your power to do good, as you conceive good. Who would pass up such a chance?

I believe that, for the majority of judges in last week’s gay-marriage ruling, the question was not “Does the Constitution allow states to define marriage?” but “Do you favor gay marriage? Yes or no?”

Judging is not for everybody. Judging requires a certain neutrality, which can be annoying. It requires fidelity to constitution and law. A judge has a constituency of one: the constitution and law. Most people, I think, would rather be lawmakers than judges. I myself would rather be a lawmaker. But if I were a judge, I think I’d do my job.

You?

P.S. Anyone who thinks that churches won’t be compelled to perform gay marriages is smoking the hash that we have long sought to legalize. There is no opting out of the new America. Get with the program, Gramps.

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