"When I am looking at a statute, I not only look at the words, I have to understand the context in which those words are being used, because frequently they are not as straightforward and as simple as they might be, because they are the process of a compromise that has gone on at the legislative arena.... Judges are supposed to try to carry out the will of the legislature, and sometimes that's hard to find.The LawPundit refers here to Mikva's Interview especially because we have just been reading usregimechange's Journal at the DemocraticUnderground.com which has informative postings about judicial appointments in the United States -- if only that blog were not so glaringly wrapped in a politically partisan package. Won't the only people who read such pages be those who think similarly anyway, so what is the point? Why not present the same information in a less partisan cloak? Readers will add their own partisanship anyway, about that there is no doubt.
Do you think that helps us understand why there has been a dissatisfaction with the court system and with judges in recent years?
I think partly so. I think judges tend to be too separate from the political process and the body politic. I guess the best example I can think of is one of the great controversies of our time, the abortion controversy, Roe v. Wade. Let me start off, so everyone understands my prejudices, I support the result of Roe v. Wade.
... The result pleased a lot of us, still pleases a majority of the people in this country. But it angered that minority with a passion, because they had just been short-circuited in their efforts to fight it out in the political arena ... in retrospect, I wish the court had stayed its hand and allowed the political process to continue, because we would have legislated the effect of Roe v. Wade in most states -- not all of them, but in most states -- and we wouldn't have had to pay the political price we've had to pay for it being a court decision. The people who are angry at that court are angry beyond measure. As far as they are concerned the whole system is rotten because they've lost their opportunity to slug it out....
I think that in the case of abortion, the court could have stayed its hand because the political process was moving. In the case of segregation, of civil rights, the political process had been frozen, and if the court hadn't intervened we would still be where we were.... "
The LawPundit, as a non-partisan centrist, is one reader who often finds partisan politics to be counter-productive to the achievement of the task at hand and who examines all judicial appointments from the standpoint of qualifications and competence. We equally supported the nomination of Chief Justice Roberts as also Associate Justice Sonia Sotomayor, both of whom were fully qualified by education, experience and character for their Supreme Court chairs.
As Supreme Court "swing Justice" Anthony Kennedy (a Reagan appointee) shows -- there is no guarantee that a Justice will vote in the manner that partisans expect. This is especially true for Justices armed with the best credentials -- these are not "yes men" or "yes women", but have their own independent legal minds, which they exercise to the fullest when they get to the Supreme Court. "Final" responsibility has a sobering effect on most anyone.
A good example that partisanship is not a top priority for judges -- who focus rather on correct legal interpretation -- is the recent SCOTUS animal cruelty depiction case, where the 8-1 decision on the law is clear from a legal point of view, even though pet-owning readers such as myself side in sentiment completely with Justice Alioto's dissent. The reason for the decision is not the political party card of the Justices, but rather an oft incompetent Congress, filled in part with well-meaning people not trained in the law, who some years ago passed an overly broad statute that even legal novices can easily identify as being Constitutionally deficient, which is why all the allegedly "conservative" Justices (except Alioto) also sided with the majority opinion.
That is the job of the Supreme Court in our system of checks and balances. Congress can Constitutionally pass appropriate legislation to outlaw certain specific kinds of morally depraved videos, but they can not pass overly broad laws which result in people being prosecuted and put into jail for pictures and videos that were really not the focus of the law - a law which gave the prosecution much too much discretion in who to prosecute and who not.
It is now up to Congress to quickly correct their error and pass specific legislation outlawing precisely the type of pictures and videos that the law primarily intended to prohibit, without including "the kitchen sink". The Supreme Court will not find such a law to be overly broad and unconstitutional, as in the instant case.
"Blanket" prohibitions -- from whatever quarter -- are often overly broad by definition and this is one reason that we expect the Supremes to find in favor, e.g., in such a case as the Christian Legal Society against the all-comers student organization membership policy of Hastings Law School. See our postings in regard to that case:
The Bizarre Case of Christian Legal Society versus Martinez (Hastings Law School) : Oral Arguments on Monday, April 19, 2010
Christian Legal Society (CLS) vs. Martinez (Hastings Law School) : Oral Argument Transcript: : Supreme Court of the United States
Anyone who tries to establish "correct law" in such a case as above can not be guided by partisan allegiances but rather must work very hard to define cogent and consistent legal standards that the populace can follow.