When the first President Bush signed the Civil Rights Act of 1991, many conservatives complained that it was a "quota bill," as Bush had said of an earlier draft. Congressional Democrats and liberal groups hoped that the legislation would, among other things, help provide access for racial minorities and women to job markets that had been traditionally dominated by white males.
Justice Sandra Day O’Connor got her job through affirmative action. It was obvious to officials in the Reagan Justice Department, as they searched for a Supreme Court justice in the summer of 1981, that she lacked the usual qualifications for the high court. "No way," Emma Jordan, an assistant to the then Attorney General William French Smith, recalls thinking. "There were gaps in her background where she had clearly been at home having babies. She had never had a national position. Under awar
Justice Sandra Day O’Connor got her job through affirmative action. It was obvious to officials in the Reagan Justice Department, as they searched for a Supreme Court justice in the summer of 1981, that she lacked the usual qualifications for the high court. "No way," Emma Jordan, an assistant to the then Attorney General William French Smith, recalls thinking. "There were gaps in her background where she had clearly been at home having babies. She had never had a national position. Under awards, she had something like Phoenix Ad Woman of the Year." No matter. President Reagan wanted to appoint the first woman justice, so he named O’Connor.
Republican presidents have picked seven of the nine current Supreme Court justices. But as the Court demonstrated so dramatically last month by blessing both gay rights and racial preferences, the result has been nothing like the "conservative Supreme Court" the media often depicts.
Chief Justice William H. Rehnquist is fond of quoting a maxim of Cicero’s: Inter arma silent leges ("In time of war, the laws are silent"). At least, he said in a speech two years ago, "they speak with a muted voice."
The federal court decision declaring the "under God" phrase in the Pledge of Allegiance unconstitutional caused an uproar. But it may also provide a window into a larger contempt for the judiciary that seems to be taking hold in George W. Bush’s Washington. The stormy legal battle after the 2000 presidential election, and the ever-nastier fights over nominations to the federal bench, risk eroding the courts’ standing among Democrats and Republicans alike. Discontent with the courts is particul
The federal court decision declaring the "under God" phrase in the Pledge of Allegiance unconstitutional caused an uproar. But it may also provide a window into a larger contempt for the judiciary that seems to be taking hold in George W. Bush’s Washington. The stormy legal battle after the 2000 presidential election, and the ever-nastier fights over nominations to the federal bench, risk eroding the courts’ standing among Democrats and Republicans alike. Discontent with the courts is particularly strong in the current White House, which views the judiciary with more disdain than any in recent history. Bush has made no secret of his desire to curb judicial power, and especially the courts’ role in reviewing his conduct in the war on terrorism.
The pledge case itself may turn out to be a minor distraction. California’s Ninth Circuit, one of the nation’s most liberal courts, is also one of the most overturned–and its pledge decision is almost certain to be reversed down the road. But lost in the tumult over the ruling was a simple fact that helps to illuminate the larger dissatisfaction with the courts: as much as the ruling overreached, the California court was clearly taking its cues from a higher authority–the U. S. Supreme Court.
The California judges’ condemnation of the words "under God" …
"Why should I be made to feel like an outsider?" asked Mike Newdow, the California atheist who got two judges to declare the Pledge of Allegiance unconstitutional, as he explained his litigious urges to The New York Times. After he’s finished stripping "under God" out of the Pledge, he hopes to rip "In God We Trust" off of our money. And he is itching to do something about the annoying proclivities of newly elected presidents to pray at their inaugurations.
Justice Byron R. White’s former law clerks remember him not as one of his generation’s greatest football players, but as one of its sharpest legal minds. He was, some say, the smartest person they ever met. Yet in 31 years on the Supreme Court, the most gifted scholar-athlete of his time made far less conspicuous a mark on the law than colleagues with far less potent intellects. One reason was the inelegant, cryptic, often-confusing writing style of the brusque, no-nonsense White. Another was a virtue now very much out of vogue: his modesty in the exercise of judicial power.
Teachers in Michigan’s public schools are prohibited by law from patting students on the back, lest someone shout "sexual harassment." But it is almost impossible to get an incompetent teacher, or a disruptive child, out of the classroom anywhere in the country. Bristol, Conn., like other towns, has removed the seesaws and merry-go-rounds from its playgrounds. Some kids find the new, certifiably safe playground equipment so boring that they make up games of crashing into it on their bicycles.
"A word is not a crystal, transparent and unchanged, it is the skin of a living thought," wrote Oliver Wendell Holmes Jr., one of our greatest judges. A Kennedy Administration lawyer offered that quote a long time ago to square the language of the U.N. Charter with the U.S. naval blockade of Cuba in 1962. In the charter, the United States had undertaken a solemn obligation to renounce "the threat or use of force" except in "self-defense" against "armed attack." It took some fancy lawyering to classify unfired Soviet missiles in Cuba as an "armed attack." But it seemed a bad idea to wait for someone to fire them.
This may seem to digress from the topic du jour. But bear with me. Much as I might like to predict or opine who should be our next President, I don’t have a clue, and it may be all over when you read this. So this is an opportune time to stand back from the cacophony of lawyers, spinners, anchors, protesters, professors, and Palm Beach partisans. To get past the perishable pensees of the pundits (present company included), whose "characteristic flaw has been to exaggerate the importance of whatever is being pundited about," as Wall Street Journal pundit Holman Jenkins observes. To stop bouncing among skirmishes and survey the battlefield from above, as one might from a hot-air balloon. (Oops. Unfortunate simile. Make that a weather satellite, or a B-2 bomber.)
What brings Holmes to mind is the striking unhelpfulness of the words in our constitutions, statute books, and judicial precedents as a guide through our current constitutional conundrum, or crisis, or whatever. This at a time when "the selection of the American President is now dependent on a bewildering array of small judgment calls by local ballot examiners and big decisions by judges and state officials about whether they should be heeded," in the words of The Wall Street Journal.
At the core of American freedom, wrote the late, great Justice William J. Brennan Jr. in 1964 in New York Times Co. vs. Sullivan, is "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." Attacks on private individuals are protected speech, too, as Brennan and his colleagues held in other decisions.
