On the merits

We’re back from Spring Break.  Opening up today’s Washington Post, we noticed that George Will holding forth on the judiciary.  For those who don’t know, George Will has one thing to say about the judiciary: it shouldn’t be in the business of making social policy.  Of course that’s a silly view, because it purposely ignores the questions the courts must resolve: what is the law?  What does it mean to "bear arms"?  What does "free speech" mean?  What is "equal protection"?  These are unavoidable social policy questions.

Today he animates his usual complaint with the following statistic:

The denial of annual increases, Roberts wrote, "has left federal trial
judges — the backbone of our system of justice — earning about the
same as (and in some cases less than) first-year lawyers
at firms in major cities, where many of the judges are located." The
cost of rectifying this would be less than .004 percent of the federal
budget. The cost of not doing so will be a decrease in the quality of
an increasingly important judiciary — and a change in its perspective.
Fifty years ago, about 65 percent of the federal judiciary came from
the private sector — from the practicing bar — and 35 percent from
the public sector. Today 60 percent come from government jobs, less
than 40 percent from private practice. This tends to produce a
judiciary that is not only more important than ever but also is more of
an extension of the bureaucracy than a check on it.

I wonder what "government job" means in this instance.  Could it mean they were judges?  That’s a government job.  And I’d hardly call that particular government job "an extension of the bureaucracy" (since, after all, the judiciary is a branch of the government).  

But what silly conclusion does Will draw from this?

Upon what meat hath our judiciary fed in growing so great? The meat of
modern liberalism
, the animating doctrine of the regulatory and
redistributionist state. Courts have been pulled where politics,
emancipated from constitutional constraints, has taken the law — into
every facet of life.

Even though the "government job" set-up is silly, this is even sillier.  But it’s the typical Will complaint about the courts.  Courts, Will complains, have been pulled around by politics, etc. etc.  That’s a silly objection.  Here’s why: the courts decide political issues.   They have to.  It’s their job.  When they decide these questions, they give arguments, called "opinions."  These contain what they consider the legal rationale for the position they take.  If Will doesn’t like this legal rationale, then he owes the courts an argument, as they say in legal circles, "on the merits."  To ignore this obvious fact, as Will does, is what one might call "begging the question." 

For the one or maybe two conservatives who may stumble upon this, I’m not arguing that the opposite of Will’s view (whatever that might be) is correct.  I’m merely suggesting that his complaint about the judiciary is hollow.  There probably are some pretty good conservative positions on the judiciary.  It’s a shame that shallow whining of the Will variety has achieved such prominence. 

2 thoughts on “On the merits”

  1. Oh, I agree with you that Will’s constant complaints about the power of the judiciary are unfounded, and he’s among the worst of quote-miners and cherry-pickers when it comes to the Federalist Papers excerpts on the subject.But the overall view that federal judges should be paid (and get raises) on scales that adjust with inflation, as does every other aspect of government payroll (except Congress that has to explicitly vote their own raise every time – who were the ad wizards who came up with THAT one? 🙂 ), I can accept as a valid point.Then again, if one associates the stereotype of financial greed of the Conservative/Republican side of things, then by raising the salaries of judges, maybe he’s implying that one would get more conservative lawyers willing to be judges.  He’s making it look like it’s a case of "you get what you pay for" as a form of quality control, but really he may be saying that "right now, the government can’t afford the people I think would become the judges we need to set this country straight." 

  2. Thanks for the comment. 

    Interesting points about pay.  I ignored that in Will’s article in part because I know judges work very hard–my father was one.  But they tend to get paid fairly.  Should they get raises?  Absolutely.  Does the pay mean we get low quality judges?  No.  Private attorneys–I know many–of the kind Will describes make money by billing lots and lots of hours at very high rates.  Not to say that judges don’t work hard, but the first-year associate comparison is very misleading.  Those are associates at elite law firms (where they will be expected to work 80 hour weeks).    

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