SharksWithLasers -- Seth Cooper

A CUTTING-EDGE BLOG FOR THE WORLD OF THE 21st CENTURY, Currently operated by Seth L. Cooper, a 27 year-old attorney in Seattle (sethlcooper at comcast dot net)

Monday, July 11, 2005


1. John Leo endorses Judge Edith Jones for the Supreme Court. In his latest column, he favorably quotes her statement in a Richmond Law Review article that calls legal elitists into account. But rather than discuss Judge Jones at length, Leo spends far more time discussing problems with the reigning judicial philosophy of interest groups who have minimal regard for majority rule.

Leo goes on to say:

Electoral and legislative majorities are said to be arbitrary and meaningless; the collective wisdom of ordinary voters allegedly cannot compare to that of judges. Some years ago, law Profs. Robert Nagel and Jack Nagel wrote that “if all political majorities are just arbitrary, the outcomes of democratic political processes lose their legitimacy and everything becomes fair game for the (supposedly) wiser deliberations of judges. That seems to be a conclusion with broad appeal, at least among law professors."

I agree with Leo and with Profs. Nagel and Nagel. (Prof. Robert Nagel, by the way, penned an outstanding book: The Implosion of American Federalism.)

2. George Will supports Judge Harvey Wilkinson III. Like Leo, he spends the preponderance of his column discussing judicial philosophy. I highly recommend Will’s column, as it contains some very important points about legal reasoning and what it means to expound upon a constitution.

Accoding to Will:

Constitutional law is rife with clashing certitudes generated by too-clever theories purporting to illuminate the one valid approach to construing the Constitution. These theories obscure uncertainties inherent in all legal reasoning, and especially in construing a written Constitution in light of precedents produced by applying it in political contexts, and to controversies, unforeseen by its framers.

While positive law draws upon principles, logic and reason, it is something enacted, interpreted, and applied by human beings in cases and controversies involving other human beings in complex and unique factual circumstances.

Will expands upon the earlier point:

Dismay about abuses of judicial discretion drives some conservatives into a misguided quest for a jurisprudential holy grail -- a theory of constitutional reasoning that will virtually expunge discretion from judging. This goal is chimeric.

Construing the Constitution should begin with what the document's pertinent language meant to those who wrote and ratified it. But construing can rarely end there. Historians continue to deepen our understanding of how varied and occasionally contradictory were the intentions of various framers and ratifiers. History always informs constitutional deliberations; it rarely is dispositive.

This is why even originalist jurists such as Justices Clarence Thomas and Antonin Scalia occasionally find themselves on different sides in cases before the Supreme Court. Even when the original understanding of a constitutional provision or a statute is clear, the application in a given case requires judgment. It requires discretion.

Will also does a service by implicitly showing the absurdity of the claim (popular with many on the left) that originalist jurisprudence somehow strands us in the 18th century. That claim is baloney. Will is a propoenent of originalism. And originalism respects the fact that we have a written constitution. Our Founders drafted and ratified that written document for a reason. They didn’t trust the security of our liberty and common good to the whimsical views of the mob or powerful elites.

3. Hugh Hewitt comes to Attorney General Alberto Gonzales' defense. His post from the other day is consistent with views I expressed earlier. Labelling his remarks as "center-right heresy," Hewitt makes a clear and important point: is really absurd to suggest that AG Gonzales is not qualified to sit on SCOTUS, or that his nomination would be a "betrayal" of past promises.

That is something with which this center-right heretic strongly agrees.

3. Ken Masugi calls for Judge Janice Rogers Brown to be the newest Supreme. See his post at The Remedy. I've already indicated my enthusiasm for Judge Brown.

(North Seattle—Green Lake, WA)


  • At 6:16 PM, Anonymous Greg said…

    I think Edith Jones was running right behind Al Gonzales in betting at That said, I don't like Al Gonzales for one simple reason - he's not really pro-life, and I'm sick of supposedly Republican presidents getting supposedly sympathetic judges confirmed that then shit all over pro-life principles and can't be removed until retirement or death. Their votes are letting millions of children be killed each year out of some vague "undue burden."

  • At 12:20 PM, Blogger DemocracyMarket said…

    Coop, I agree with you and Hewitt on the Gonzo take.

    but I like Garza better...


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