כ "Incisive commentary on Justice-Cowgirl O'Connor" by Tom Smith. I will repeat the following The Right Coast posting in full, since it is good I don't want to risk the link going bad one of these years.

 
Incisive commentary on Justice-Cowgirl O'Connor
By Tom Smith

Did you miss the Lehrer News Hour commentary the other day on Justice O'Connor? I should have been so lucky. It went something like this:

Jim Lehrer: We're here today to discuss how wonderful Justice O'Connor is. Let me begin by asking Doug Kmiec, Dean of Pepperdine Law School, this question. In what do you think her wonderfulness most consists?

Dean Kmiec: It's hard to say, Jim. She is wonderful in so many ways. I have argued before her before, and hope to do so again. I think if I had to say, however, it would be her profound wisdom, her sensitivity to the fact that every case has to be decided by a detailed attention to the facts, which, as you know, are different in every case. Indeed, there's just no telling what fact may turn out to be the decisive thing!

Jim Lehrer: Dean Sullivan of Stanford, wonderful attention to the facts?

Dean Sullivan: Well, that, and so much more. You know, she grew up on a ranch, in the West, with cows and everything. Six guns, Indians, purple sage, the whole bit, one would think. That gives her wonderfulness an extra dimension that you don't normally get inside the beltway.

[Professor Smith at home: Oh God. Oh no. Ack. ack. ack. Jeez, I just cleaned that rug . . . . Biscuit! Get away! That's not good for you, girl!]

Jim Lehrer: John Yoo, professor of law, is wonderful a wonderful enough word to describe the wonderfulness of Justice O'Connor?

John Yoo: Well, I'm not sure wonderful is the word I would choose. To be wonderful, I think a judge should follow the law, not just make it up so as to maximize one's personal influence and that of the court one happens to be on. When judges don't follow the law, it makes me nervous. I think people who make up laws should be elected.

Jim Lehrer: Just making it up as she goes along, Dean Kmiec?

Dean Kmeic: Oh, no! Oh no, no, no, no, no! You are neglecting Justice O'Connor's exquisite sensitiving to the facts . . . .

Dean Sullivan: That's right!

Dean Kmeic: Her sensitive sensitivity to the ebb and flow of the emerging growth of the penumbra emmanating from the aura of the meaning of the changing dimension of our popular understanding of the . . .

Dean Sullivan: legitimacy

Dean Kmeic: . . . Of the court, which she so wonderfully understands, in a very wise way.

Jim Lerher: Legitimacy, Professor Yoo? Wisdom?

Professor Yoo: I would just like her to follow the law, not just flop around in the middle so she can be important. It's not just about maximizing political power, you know.

Political Scientist: Yes it is. Of course it is. What are you talking about?

Professor Yoo: Look, let me put it this way. Does anybody seriously think that anyone will be reading O'Connor opinions 20 years from now, as we read today the opinions of a Holmes or a Hand or even a Brennan (though I admit this last one is a stretch)?

[Professor Smith at home: Read . . . O'Connor opinions ?! . . . ah ha ha hahahahahahahaha! Gulp. choke. choke. choke. Sheesh. That was my last Stone Pale Ale . . . Any one that reads an O'Connor opinion for less than $500 an hour is a masochist . . . risking brain damage . . . God, though, what about a Souter opinion? Death by a thousand cuts. Rather read . . . Or a Kennedy opinion . . . the horror, the horror. . . ]

Dean Sullivan: It's hard to tell what will be influential in 20 years . . . I suppose anything can happen . . .

Political Scientist: That's right. Anything!

Dean Kmiec: I think we should get back to the wonderfulness of Justice O'Connor. I just want to give her a big, fat kiss.

Dean Sullivan: Me too.

Political Scientist: Would someone bring me some coffee?

John Yoo: I'm sure she's a nice woman. I'm not saying she's stupid (though I'm not denying it either). I would just like it if she would act like a judge. That's what it is supposed to be, you know, a court . . .

Dean Kmeic: I wonder if I might play for you this little ballad I've written about Sandra Day? It goes to the tune of "Yippy Tie Yie Yay, Get Along Little Doggies" . . . It's called "The Sunshine Justice" . . .

Jim Lehrer: I'm afraid we're out
of time.

[Professor Smith at home: Come here, Biscuit. Would you like to be a Supreme Court Justice? Biscuit, you're such a smart girl . . . ]

Place refers to the nice treatment one gets merely by being in an important position. No matter how untalented or unprincipled he may be, a judge is treated with great surface respect. That is one of the nice things about the job. This helps explain why Justice O'Connor might like being a judge, but not her behavior on the bench, since the key thing about Place is that one doesn't have to do anything but remain a judge to enjoy its benefits.

Policy refers to one's views on what should happen in the world. Many judges abuse their positions by pursuing the policies they want rather than following the law. Justice O'Connor does not seem to care about such things, however.

Principle refers to one's views on process. A formalist judge will "Do justice even if the skies fall!", rather than substituting his own views for the foolish things the law says. Indeed, the judge who follows Principle often seems to delight in doing his duty by following obviously stupid laws--- this, indeed, is the clearest way to show one's devotion to Principle. Justice O'Connor doesn't seem to care about this either.

Pride refers to the satisfaction gained from the esteem of others. This might be something Justice O'Connor does care about. Certainly that is the accusation Professor Smith implicitly makes when he interprets Deans Sullivan and Kmiec as grovelling flatterers before the judge. Pride is a complicated objective, though, because to secure the esteem of one group is often to lose the esteem of another group. Thus, Justice O'Connor has gained the esteem of liberals by making liberal decisions after her appointment, but she has lost the esteem of conservatives. Also, the mockery Professor Smith casts at her opinions is the conventional wisdom--- her opinions are so poorly written that her reputation as a good judicial craftsman would benefit from her adopting a strategy different from her "muddle in the middle" one.

We are left with Power, which is the objective Professor Yoo suggests she pursues. Power refers to the state of being able to influence the world. Unlike Policy, however, it refers to potentiality, not actuality. If a President Bush wishes to maximize his Power, for example, he would protect his popularity by never adopting any policies that would require him to use up political capital. In doing so, he would wield great potential influence--- but he would never be able to actually use it. A person who maximizes power is like a miser who maximizes wealth; it can only be done by foregoing the policies or purchases one might otherwise make.

This might well explain Justice O'Connor's decisions. If she doesn't care about outcomes or process, but does care about power, then she should always try to be a swing vote. Moreover, this might mesh nicely with the objective of Pride, since flattery usually follows Power.

[ http://php.indiana.edu/~erasmuse/w/04.01.22b.htm .     Erasmusen@yahoo.com. ]

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