Tuesday, November 20, 2007

O'Connor - Mediocrity Unleashed

Ever since Justice Sandra Day O'Connor retired from the Supreme Court in 2006, we've all been wondering what she's up to. What brilliant, incisive legal commentary would she be offering as a private citizen to match her capable jurisprudence on the highest court? Wonder no longer; she's grossly misrepresenting Pennsylvania politics.

Now, I certainly don't want to to defend politics in the great (er) commonwealth of Pennsylvania. The state manages to shoot itself in the foot at every election, and is responsible for the self-important legislative roadblock called Arlen Specter. Our governor is a corrupt, turnpike-leasing, servicemen-disenfranchising weasel. But that's actually my problem with O'Connor - she's attacking grassroots efforts to actually hold politicians accountable for their corrupt dealing:
In addition to the contested Supreme Court seats, 67 state judges were up for retention election in Pennsylvania this year. Retention elections are historically very low profile, but they became contentious in 2007 when a small but organized grass-roots campaign sought to oust all but one of the judges whose names were before the voters because the judges had accepted a legislatively enacted pay raise rather than returning the money to the state treasury. They attacked the judges as "pigs in robes," conjuring images of greedy out-of-control politicians.

Fortunately, Pennsylvania voters were not swayed by the spurious attack, but that doesn't mean that the attacks weren't harmful, as they were essentially all anyone heard about Pennsylvania's 2007 retention elections. One of the dangers of low media coverage and high interest-group spending is that voters hear only from activists who have targeted a particular judicial race. The Pennsylvania retention races show how easily the issues in judicial elections can be controlled by special interests.
Those "special interests" included reining in a legislative attempt to raise its pay without voters' noticing, by conducting a vote late at night, when (the hope was) no one would notice. Those who voted for the pay raise (most of them Democrats) were rewarded with juicy committee positions. Does Justice O'Connor just not understand that "special interests" always include interests of actual citizens? In this case, the special interests were those of, well, all taxpayers in Pennsylvania who were faced with a corrupt legislature wasting their money (Pennsylvania already wasting plenty of money already and not really in a position to spend more) using a shady backroom deal. And the courts upheld this horrifically unrepublican procedure. Payback is a, well, payback isn't pleasant; and when that payback is the resolution of a political question by voter participation, it's really, really difficult to fault the voters for putting undue pressure on the judiciary. After all, in a representative democracy (yes, cliche time), officials serve at the pleasure of the people, the true sovereign. That judges are elected in Pennsylvania, not appointed, completely demolishes any notion that those judges should be entitled to the theoretical political independence that federal judges, for instance, have.

It is a very strange thing to hear from Justice O'Connor that political influence on judicial decisionmaking is such a sin. After all, this is the woman who espoused a judicial philosophy of "result first, justification later." If a result made her feel good, she would vote for it - even if the justification for that result involved tortured logic that both ignored precedent and skewed the subsequent caselaw. So the law is not independent of politics at all, but must respond to political demands in order to create the best result, and damn the rationale - it can always be constructed out of whole cloth later.

One got the impression that Justice O'Connor never really had the intellectual capacity to serve on the highest court. Perhaps I do not either; but then, I don't anticipate a nomination. It's disturbing that she never understood the basis for this country's political arrangements and that she doesn't have the brain needed to connect two thoughts in a coherent fashion.

I hope the bench will survive without her elitist judge-worship and touchy-feely jurisprudence.


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