Unlike most conservatives, I don’t blindly jump on the “there’s no rights but those mentioned in the Constitution” bandwagon. I’m too much of a libertarian for that and I think the Founders intended other rights to be protected judicially from encroachment other than those given specific mention. however, I don’t believe abortion is one of those rights.

I was taking with a friend the other day (we're both in law school currently, FWIW) and we came to the same conclusion: on a sensitive, personal issue such as abortion, the courts are the worst possible instrument to effect rational policies. He made the point that in a lot of decisions on a number of issues, the evidence and rationales the court relies upon to reach their conclusions often point to exactly the opposite result upon further inspection.

Although I’m no lawyer (yet) I think I’m going to have to disagree with your assertion that judges are neutral magistrates weighing the evidence before them. More often, they seem to have a predetermined outcome in mind and give inordinate weight to the evidence that supports their favored outcome. They look over the crowd to pick out the heads of their friends, as Scalia says.

And even if this weren't the case, the role of an appeals judge shouldn't be to decide who argued better, but TO APPLY THEY LAW HONESTLY, FAITHFULLY AND WITH INTEGRITY. Once they start playing verbal games and manipulating the outcome to serve the policies they favor, the whole meaning of "the rule of law" is corroded and our system becomes just as suscpetible to the rule of men as the tyrannies we so roundly condemn.

Nomad, good questions.


The court rationalized its decision based on several previous lower federal and state rulings that laws outlawing abortion were constitutionally suspect. It also placed a lot of emphasis on the fact that no state (or at least the majority of them) considered a fetus a "person" for legal purposes, hence killing a fetus is legally different than killing a "person." Relying on a previous decision regarding contraception (Griswold) the court jumped to the conclusion that family planning is a private right protected by the constitution and that since abortion is a kind of family planning, it was protected too. It's a tortured decision and even people who support abortion question its reasoning, and with good reason.

Don,

Morals are important, but right now I'd take an atheist who is faithful to the Constitution over a Bible-thumper who thought it was a "living document."

A judge's job is to apply the law, especially at the trial level but also at the appellate. The most important consideration is not how sympathetic a particular party is, how many amici briefs they have, how they frame an issue or anything else. The most important role for a judge is to APPLY THE LAW AS WRITTEN giving necessary deference to precedent if it comports with the language, intent, spirit, history and tradition of the Constitution.

At the trial level, a judge's decisions are certainly based on evidence and presentation because he has to decide the particular controversy in front of him, but most of the time his role is a "gate keeper" since most issues of facts will be decided by a jury, unless it's a bench trial (relatively rare, even in the federal system.) So the damage he can do is comparitively small precisely because his ability to set policy is limited.

But appeals courts, setting broader policies and more far-reaching decisions and precedents don't have to worry about issues of fact, since those will have been decided at the trial, i.e. by the time a case reaches appeal, they have the facts pretty much given to them. It is these courts that shouldn't (but unfortunately do) consider things like which way the political winds are blowing, what organizations filed briefs on behalf of this or that party and all the other things they routinely cite. They look at sociological studies to bolster their rulings and in general substitute their judgment for the judgment of the people, the legislature or a previous court. Such actions are abhorrent to a system that needs consistency and settled expectations and definitions of rights, powers and responsibilities. I have no doubt but that judges have ruled many times against the party that put on the better case in terms of evidence, presentation, argument, and policy simply because they did not like the law or the people who supported it. I know I could outargue a multitude of my classmates on any given issue and with any given set of facts, but that's not the litmus test for what the decision should be. The decision should rest on a consideration of "what does the law say and how does it relate reasonably and rationally to these facts?" The respective skill of a given side's attorney should be pretty much irrelevant to an honest judge.

Don't kid yourself. Judges know the law and don't need lawyers to explain it to them, at least on most issues, and to encourage them to decide a case based on which lawyer 's a better debater would be to encourage them to further abdicate their responsibilities to faithfully apply the law.

Don,

I think we were talking at cross purposes. You were more focused on a trial court, while my concerns are more regarding appeals courts and the erroneous standards and reasonings that pop up there as a matter of policy and legal interpretation. This is a snippet from caedroia.org/blog that pretty much sums up my beliefs more articulately than I can right now:

The Supreme Court's job?the whole judiciary's job, in fact?is not to represent anyone. It's to apply the law as written to the facts of the controversies that are argued before them. That's it. There's no "black" meaning to the 3rd Amendment. There's no "feminist" reading of Admiralty law. There's no "hispanic" theory of tortious liability. There's reason, and the law, and that's about it. There is nothing at all about the judiciary that's representative. That's what we elect Senators, representatives, and to some extent, Presidents to do.

This is a microcosm of whole problem with the way the Left views the Courts. They view the Courts as another governing branch, which makes interest in "proper results" and "looking like America" and "making history" important to them. But the Judiciary is not a governing branch. At best, it's a referee for the real governing branches, the executive and the legislative.

Once you've bought into the idea that the Courts are there in some way to govern us, then you've already subscribed to a feeling of equanimity with tyranny. You've already become comfortable with the idea that a coterie of unelected lawyers who serve for life can become a sort of peerage?a legal nobility?who can legitimately direct our lives in any way they wish, whether we, the people, agree or not.

The really funny thing is that such an attitude is what's now known as "progressive" thinking.