kind of jurist should President Bush
The Virtual Editorials - E10 (July 10, 2005) - Dennis Foster
|Introduction: The retirement of O'Connor was only a mild surprise - many political observers were saying this was in the works. The only real surprise was the Chief Justice Rehnquist, who has been suffering from thyroid cancer, seems determined to hang on until the end.|
Virtual Editorial #10
is best which governs least,” widely attributed to Thomas Jefferson,
sums up the necessary philosophy for any Supreme Court nominee.
Government, as an idea, is evil because it relies on coercion to
enforce its decisions.
In a utopian
world, one’s actions would be managed by voluntary arrangements.
It is interesting to speculate about how such a society would
function, but it is just an exercise. In the real world, we must
live with government as a necessary evil. Still, less
(government) is more (freedom).
I would applaud
President Bush’s appointment of a jurist that would have voted:
--For Kelo (Kelo
v. City of New London), opposing the power of the state to seize
private property for alternative, private, uses.
(Gonzales v. Raich), opposing the power of the federal government to
regulate individual marijuana use when it has no interstate commerce
(Grutter v. Bollinger), that “race based planning by the Law
School” at the University of Michigan is not only untenable, but
Rehnquist and Thomas so voted. So, I’ll hope that the next
justice looks, philosophically, like them. And, perhaps, Justice
Thomas will soon become the Chief Justice.
Afterword: If you paid any
attention to all the hullabaloo following O'Connor's announcement,
what you heard was that the next appointee should be a consensus builder, a
minority, a woman, an Hispanic, and on and on. Most of this talk
was from the left, and it was mostly nonsense, if not outright
offensive. After all, how many liberals endorsed Clarence
Thomas' nomination? So, really, it has nothing to do with
superficial qualities like gender and race, but, rather, with the
person's judicial temperament.
Well, having said all that, this was a time consuming editorial to write. I am not a lawyer, and I spent many hours looking up Supreme Court decisions and reading through some of them, and commentaries on them. One cool web site where you can look up Supreme Court decisions, from 1999 through the present, is FindLaw. After doing a quite a bit of reading, I had a fourth case to cite, but ran out of space in the editorial. That one was Hamdi v. Rumsfeld and involved the treatment of an enemy combatant, who is an American, captured in the war in Afghanistan. Well, so it goes.
I did like the chance to work in the theme that "government is evil." I don't see how anyone can disagree, even if they can cite a list of "good" that government can do. The quote at the outset is not clearly from Jefferson, although I have associated it with him since I first heard it during the presidential campaign of 1972. I did try and do some research here, and there is no firm consensus. Jefferson scholars can't point to any product, written by Jefferson, with that quote, but the attribution goes back to the 1800's. The first publish appearance of this phrase is, I believe, from Henry David Thoreau.