To the Editor:
Senator Jeff Sessions of Alabama, the ranking Republican on the Senate Judiciary Committee, speaks nonsense when he says that “politics has no place in the courtroom.”
First, despite their claims to the contrary, Republicans no less than Democrats want politics in the courtroom. The two sides differ only over its content: conservative for the Republicans, liberal for the Democrats.
Second, and more fundamentally, law and politics are inextricably linked, particularly in the Supreme Court. The cases coming before the justices reflect politics, and the process by which the justices resolve them is permeated by politics. Also, their key decision-making tool—the Constitution—is an inherently political document open to interpretation that inevitably mirrors the political values of the interpreter.
The two parties ought to drop their hypocrisy and admit the truth that Alexis de Tocqueville recognized almost two centuries ago: that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.”
Gerard J. Fitzpatrick
Collegeville, Pa., July 14, 2009
The writer is a professor of politics at Ursinus College.
Note from KBJ: Law and politics are distinct enterprises, just as science and politics are distinct enterprises. Law, like science, is an autonomous institution, with rules, procedures, and norms of its own. That certain judges allow political considerations to influence their decisions is no reason for believing that they should or must do so. Indeed, they should not. Just as a scientist who allowed political considerations to influence his or her scientific judgments would be a bad scientist, a judge who allows political considerations to influence his or her legal judgments is a bad judge. In short, "is" does not imply "ought." What judges do and what they ought to do are two different things. The letter writer is trying to obscure the difference. By the way, the quotation from Tocqueville is disingenuous. To say that political questions invariably become judicial questions is not to say that judicial questions just are political questions. The former can be true while the latter is false. Does it seem to you as though the letter writer is groping to legitimize the politicization of law? And isn't this, by virtue of his occupation, to politicize academia?
Note 2 from KBJ: Judge Sonia Sotomayor disagrees with the good professor that "law and politics are inextricably linked." The job of a judge, she says, is to apply the law, not make it. It's the job of legislators (or, in the case of the Constitution, the ratifiers) to make law. Either the good professor is mistaken about law and politics being inextricably linked or Judge Sotomayor is either lying or stupid. I'm sure the good professor would deny the first disjunct, but that commits him to the second.
Note 3 from KBJ: What is the point of saying that "Republicans no less than Democrats want politics in the courtroom"? Is that supposed to justify the injection of politics into the courtroom? Do two wrongs make a right? Do two falsehoods make a truth? Do two ugly paintings make a beautiful painting?
Keith Burgess-Jackson, J.D., Ph.D. 