{"id":624,"date":"2008-03-23T10:11:49","date_gmt":"2008-03-23T14:11:49","guid":{"rendered":"http:\/\/thenonsequitur.com\/?p=624"},"modified":"2008-03-23T10:12:43","modified_gmt":"2008-03-23T14:12:43","slug":"on-the-merits","status":"publish","type":"post","link":"https:\/\/thenonsequitur.com\/?p=624","title":{"rendered":"On the merits"},"content":{"rendered":"

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<\/a> 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.<\/p>\n

Today he animates his usual complaint with the following statistic:<\/p>\n

\n

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

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).  <\/p>\n

But what silly conclusion does Will draw from this?<\/p>\n

\n

Upon what meat hath our judiciary fed in growing so great? The meat of
\nmodern liberalism<\/strong>, the animating doctrine of the regulatory and
\nredistributionist state. Courts have been pulled where politics,
\nemancipated from constitutional constraints, has taken the law — into
\nevery facet of life.<\/p>\n<\/blockquote>\n

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."  <\/p>\n

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.  <\/p>\n","protected":false},"excerpt":{"rendered":"

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 … Continue reading On the merits<\/span> →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[24,7,26],"tags":[],"class_list":["post-624","post","type-post","status-publish","format-standard","hentry","category-begging-the-question","category-will","category-suppressed-evidence"],"_links":{"self":[{"href":"https:\/\/thenonsequitur.com\/index.php?rest_route=\/wp\/v2\/posts\/624","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thenonsequitur.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thenonsequitur.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thenonsequitur.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/thenonsequitur.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=624"}],"version-history":[{"count":0,"href":"https:\/\/thenonsequitur.com\/index.php?rest_route=\/wp\/v2\/posts\/624\/revisions"}],"wp:attachment":[{"href":"https:\/\/thenonsequitur.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=624"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thenonsequitur.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=624"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thenonsequitur.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=624"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}