Vacuous Shorthand

Justice John Paul Stevens is retiring.

Yesterday, the Denver Post ran a two page article about Stevens, and the candidates most likely to be nominated to succeed him. For each potential candidate, the Post attempted to summarize some information.

Yet just a quick glance over the little snippets about each showed them to be filled with vacuous shorthand, and little real information. Repeatedly, the Denver Post tells us that they are liberals, or moderates, or left. But, what exactly, in the instance of each of these individuals, does that mean? More to the point: What can we see from their work that would lead us to that conclusion, or is the Post just prejudicing us with an opinion?

Each would likely face the accusation of judicial activism (because that's the shorthand we use for attacking law specialists with whom we disagree). Real judicial activism is arguing against (as a lawyer) or breaking with (as a judge) precedent. Our body of laws is sufficiently ambiguous and occasionally contradictory that sometimes precedent should be stood on its head. So, the question of our likely candidates: In the past, have they argued for breaking with precedent? On what grounds? A contradictory law or ruling? A recent change to law that can be taken that we are no longer interested in previous interpretations? (And what if the precedent is not really a precedent?)

What about their interpretation of the US Constitution? Do they see it as a living, breathing, evolving document, or is it dead (to use Justice Antonin Scalia's words)? How important is context to interpreting the meanings of the authors? Should contemporary laws, actions, and writings be taken into account when attempting to decipher its intent (as Amar does in “America's Constitution: A Biography”)? Or can we glean all we need to know from the document itself? Does the candidate have any history in this area?

What else can we learn from their history, their writings? Do they see individual rights as paramount, or do they view that society comes first? How do they determine if the issue in question is clearly contradictory? Will they protect the individual from the mob (whether the mob be society, business, religion, a corporation, or the government), or do they interpret our laws as protecting society from the individual? Or, much more likely, when do they see our current laws as forcing a choice – and when are they clear about in which situations one is to be chosen over the other?

There is much that would be interesting to learn to make an partial evaluation of the candidates, to give us a real feeling for how they interpret law and view the job of a court justice. Views that, if well articulated, might give us more insight into the knowledge and resources they have for making law determinations, and help us understand that they could do an immeasurably better job than you or me. Much better than filling a page with vacuous shorthand about liberal, moderate, left, conservative, etc. Those terms have lost any real meaning in this context, because they are both too broad (and hence ambiguous), and have too varied interpretations by us.

Given the opportunity to fill us in on the possibilities, the Post gives us – Nothing.

(And they wonder why their readership is dropping. I'd like to propose...)