Friday, July 02, 2010

Wonder Woman and Eliza Kagan

Been focused elsewhere this week, as I had to travel yesterday, so haven't had time to look much at Supreme Court Nominee Elena Kagan. One of the key arguments against her is her lack of experience with the law (meaning, in this case, that she hasn't been serving as a judge). Andrew Pincus, over at Talking Points Memo, notes that historically many Supreme Court Justices haven't come from the lower courts, and then explains our recent history on this issue.
The argument seems to be that because federal judges "interpret the law and don't make it," judging is a technocratic exercise: the "right" answer can be found, if only the decisionmaker is sufficiently well-versed in the technical tools of statutory or constitutional interpretation to find it.

That overly simplistic view of the judge's role is plainly wrong. In many cases, and certainly most cases heard by the Supreme Court, there are good arguments on both sides. The language of the relevant statutory provision is not clear and the surrounding text and other aids to interpretation point in different directions; or the language and history of the constitutional provision can be interpreted either way.

Judging requires the exercise of judgment. (The similar roots of the two words is no accident.) The judge must weigh the different arguments and decide which is the most persuasive.
As I've noted before, the Conservative position on the law seems to be that there is a clear right answer to all legal issues, and that answer, convienently enough, happens to be the conservative opinion. Because there is such a clear answer, any justice who doesn't arrive at the clear and correct answer is an activist judge, legislating based on something other than the constitution or the law.

In other news, they have redesigned Wonder Woman's costume; I quite like it and predict that with such a strong and attractive design this new costume design will last at least 4 months and maybe as many as 6. That said Bleeding Cool has collected some comments from our friends on the right.
Might as well call her Obama Girl now. They should stick with the original costume. Who’s next? Captain America? How sad… :(

I don’t like the new costume. The new one has no appeal. Looks like something an anti-American might put together…
Yeah, I like that one.