Tuesday, November 29, 2011
JUDGES: A Fatal Flaw in Democracy
Judges judge. But can they do so fairly? We saw in the 2000 election that the resolution of the flawed Florida vote was given to George W. Bush on a strictly partisan basis, first by a Florida judge appointed by W.'s brother, Jeb, and later by the SCOTUS itself, and always on a strictly partisan basis. While some of us may have enjoyed and even celebrated that decision, probably no one saw it as "fair."
At least since then the idea has been to "pack the courts," since that's where the real action is. After California's Proposition 8 was nullified by an apparently gay judge the left had reason to exult. They saw that a single judge could nullify a proposition voted on by millions and millions of people. A narrow victory eked out over years and years of hard work could be undone by the flick of a pen.
Gordon Wood at Brown University's ISI seminar a few weeks back said that "Madison had wanted to 'elevate the level of decision making' by forcing decisions away from the local toward the federal and national, so as to guarantee the quality of those decisions." I'm paraphrasing Wood. He cited Brown vs. Board of Education as a positive example of this. I personally didn't like being bussed into a neighborhood in which I was a minority. Chris Rock, in his filmed series Everybody Hates Chris, is bussed into Corleone High School, and he didn't like it much either. But if you had some wit and charm, and watched your back, there was the possibility of survival. It wasn't Democratic, but the Federalists in general were against states' rights, and local school boards' decisions, and wanted a strong central government, backed by elite judges. Judges were the new aristocracy whose ideas were divine, and had the sanctity of God behind them.
Obviously, judges are just normal people. Some of them don't even seem particularly bright. Sotomayor's bizarre belief that she has superior wisdom on account of her race and gender is the usual "Feminazi" garbage that Rush Limbaugh has complained about for decades. You see that belief held quite commonly throughout academia so you'd think I'd have gotten used to it but I have always thought that people who think they are hot because they belong to some group or another is just nonsense. But of course it's easier to see this in groups to which I don't belong.
I never got used to the notion that our high school football coach was God on earth because he was physically stronger than everyone else around him. He had never read Shakespeare, and didn't know how to complete a crossword puzzle. I had no idea who he thought he was, but I steered clear of the vicious brute.
I have never respected power that comes through force. I do respect democracy, and do respect the notion of voting. But it all seems to be nullified by the judges.
We have two major groups in America: we have the Christian right, who look back to the ten commandments, to the covenants worked out with God in the OT, up through Christ's period, and beyond, through the Protestant Reformation, and Luther and Calvin's attempts to create a workably just system. This in turn led us to the Pilgrims, to the wars between the states over slaves, and then the Civil Rights battles.
The American left is primarily Marxist, and derives their mode of thinking from German totalitarian Karl Marx. Whereas Protestants and even Catholics grant that the world is not perfect, Marx wanted to force fairness on the peoples of the earth through redistribution, enacted by a totalitarian government that eradicated the free will and human rights of persons with private property, in order to guarantee a Cyclopsean fairness. We saw how that worked out in the Soviet Union or in Romania, but the left holds out the option of the US being more or less like Scandinavia. Scandinavia is of course a Lutheran area, and their peoples are Lutheran. But the birdbrains of the left don't know anything about Scandinavia. None of them have been there and few of them speak any of the local languages. They imagine that it's perfect there.
Trust me: I lived in Finland for five years, and it's not perfect there. It's not perfect anywhere on earth. You'd open the Finnish newspaper and fall back amazed at the crimes committed: girls abducted and tortured near a train track. A man taped his girlfriend's head with black duct tape while she was asleep and then broke her head open with a hammer. Some creep put sharp sticks in a local swimming hole so when the boys jumped in the first day of spring they were impaled. Rapes were common. Beatings. Knifings. Taxation burdens were enormous so there was a huge black market in goods. Alcoholism was a national problem. Entire days were given over to inebriation followed by fighting and beatings, and sugar poured into the gas tanks of cars owned by outsiders.
But the culture wars in America have turned us into two separate groups with two separate aspirations, two separate models of humanity, and political will, and people take their inspiration where they can. And let's face it: we hate each other's guts, even if on the local stage, we can be friends. Nationally, I hate the guts of your representatives, and you hate the guts of mine. And it's because we will do anything possible to use the courts to slam home our way of thinking, and force the other to dance to our tune.
I've been sick for almost a week and this is the first day in about five in which I am able to think clearly. It won't last, and I am about to be pulled back into a coma of unending sleep as I attempt to cure the flu (yes, I had the shot at Walgreens but it didn't work). Meanwhile, I managed to read this paragraph from Ludwig von Mises (first published in his book Liberalism in 1927), and was impressed at its prescience (I'm not sure you get enough workup to follow what he's saying as it took him ten pages to get to this bit):
"Where, however, differences of religion, nationality or the like have divided the population into groups separated by a gulf so deep as to exclude every impulse of fairness or humanity and to leave room for nothing but hate, the situation is quite different. Then the judge who acts consciously, or still more often unconsciously, in a biased manner thinks he is fulfilling a higher duty when he makes use of his prerogatives and powers of his office in the service of his own group" (116).