The Natural Habitat of Whores and Dunces

I haven't been following the Roberts hearings. Listening to 10 minute rambling preambles to questions a first year law student would scoff at, only for a would-be Supreme Court jurist to dodge them is not in my estimation a worthwhile use of my time. Not when I could be doing something like reading books about pubescent magicians or watching b-list celebrities tell lame jokes about actual famous people on VH1. Nevertheless, I came across this via Ezra Klein of Dahlia Lithwick's take on the hearings:

"John Roberts is putting on a clinic.

He completely understands that he needs only to sit very quietly, head cocked to signal listening-ness, while senator after senator offers long discursive rambling speeches. Only when he's perfectly certain that a question has been asked does he offer a reply; usually cogent and spare. Here's a man long accustomed to answering really hard questions from extremely smart people, suddenly faced with the almost-harder task of answering obvious questions from less-smart people. He finds himself standing in a batting cage with the pitching machine set way too slow.
[...]
in the end, these hearings are perfectly matched. Roberts wants to say little and literally fade to black. The senators want to give speeches and seize the limelight. It's a match made in heaven. It's just the watching it that's hell. "

Which gets me wondering exactly why Senators enjoy preening for the cameras in these situations so much. No one remembers it. And I'd kinda think that anyone with the interest in sitting through it is going to be unimpressed with the showboatery, compared to you know actually asking concise questions that would lead an audience to think, "hey this Senator isn't actually in over his head." I mean, when even your fellow Senators know that a crossword puzzle is a better use of their time than actually paying attention to your blather, it makes you wonder who they even think they're impressing with the pirouettes that are the mark of the original sophists.

Speaking of which, I sojourned on over to the aptly named Corner, apt because corners are the natural habitats of whores and dunces, to get some sense of how Republican hacks feel about the proceedings. I don't know whether they don't care that they don't know anything more about the guy and how he'll rule than any of us do, and they just want Bush's guy to pull through because, well, you gotta root for the home team, or if they just trust Bush that much. Misplaced or not. While there, two things jumped out at me.

One, Byron York, quotes a poll on the right to privacy:

"When you think of the right to privacy, what comes closer to how you think of that right?

A) The right to be free from government intrusion -- including private phone calls, private mail, private medical and financial information, and the right to raise your children as you see fit.

B) The right to make decisions free from government interference, such as the right to choose abortion.

In the survey, done in August, 66 percent of those polled chose answer A, while 26 percent chose answer B. Breaking down respondents by category, 75 percent of Republicans chose A, while 15 percent chose B; 64 percent of Independents chose A, while 27 percent chose B; and 55 percent of Democrats chose A, while 38 percent chose B. Of women surveyed, 63 percent chose A, while 29 percent chose B."

Is it me, or is that a really dumb poll? It's like asking "do you think the first amendment is about the freedom of speech or the freedom of religion?" and then using the results to show that the american people don't really care about the freedom of religion thing. I trust even Byron York knows that this poll is fundamentally dishonest and useless.

Two, Lucianne's dipshit kid quotes Bit Hume on judicial activism:

"HUME: But judicial activism refers to a particular judicial philosophy in which there is great elasticity in the Constitution and that is found to permit and guarantee all sorts of things not there before.

(CROSSTALK)

LIASSON: That's liberal judicial activism.

HUME: Liberals don't like the term. That's what the phrase means.

Liberals have decided that that's disadvantageous to them, because Republicans have succeeded, or conservatives have succeeded, in demonizing the idea of judicial activism. So they invented a new concept of judicial activism, which is judges who are willing to hold certain congressional actions up to the light of the Constitution. And when they found the Constitution doesn't permit them, they strike them down. That's almost the opposite of judicial activism."

Like it as not, my liberal friends, Hume is more or less right about this. Judicial Activism, as I've always understood the term, never meant striking down unconstitutional laws, though some have tried to redefine it that way. Judicial Activism, as I've understood it, refers to wonderful things, such as finding that criminal defendants have, you know, rights and stuff, or that segregated schools are like bad and stuff, absent any congressional action at all. The divide between judicial activism and judicial restraint is a disagreement fundamentally on what is a political issue and what is a legal issue, on what issues the courts should decide and what issues the political branches should decide. Theoretically, you can have a liberal in favor of restraint and a conservative with an activist philosophy.

But of course, if there is such a thing as a right to, say, privacy in the Constitution, and it's fairly beyond serious dispute at this point that there is, then you will find legal issues where someone with a dogmatic faith that there is no right to privacy will find political issues. So we could call it a more complicated issue of constitutional interpretation, expansiveness vs regressiveness, if you will. But regardless, Judicial Activism has a long history of illuminating rights that we all eventually agree on, pitchfork Billy and his band of merry yokels notwithstanding. We should be proud to embrace judicial activism, just as we should be proud to call ourselves liberals and feminists, not shirk from it and apply it to retrogrades and tobacco chewing hayseeds.