Sunday, July 10, 2005

An "Open mind and a big heart"?

A Reuter's story by Thomas Ferraro published yesterday begins with this sentence:

U.S. Senate Democratic Leader Harry Reid urged President Bush on Saturday to say "no to the far right" and nominate to the U.S. Supreme Court' someone who will rule with "an open mind and a big heart." You can find the full story here:

I have two comments. First, it is instructive that this reporter recognizes who "rules" in this country. Of course, judges do make rulings in particular cases, but the word rule also has a broader connotation that is consistent with the mindset of many people in this country, particularly for the Supreme Court. They recognize that those who get to interpret what the constitution means do effectively rule the rest of us. Instead of a republic, governed by elected representatives, we have a new form of monarchy governed by an appointed elite who function as philosopher kings. All this stuff about "of the people, by the people, for the people" is just so much fluff in this model; it's what the chosen ones tell us that matters. (Some folks think that this is the way the world is now, and that it is naive to believe that it can be changed. I understand that position, but I hope they are wrong.)

Second, Harry Reid's chosen terminology -- "an open mind and a big heart" -- seems to fit nicely with this model. If we want a government of philosopher kings, where discretion rules every decision, I suppose that compassion is an important value. However, that is not the appropriate model for the Court and its function in our republic.

The ideal of a "government of laws, and not of men (people)" is a tough one to implement, given that people have to use language to communicate those laws. When general terms are used, some discretion is needed to interpret them, and that problem is acute when constitutional principles are invoked. However, if an "open mind" means one that is not bound by sound precedents and conventional legal reasoning, and a "big heart" means decisions guided by emotional values, this is a prescription for government by the elites, in which the politically accountable branches are relegated to a very limited role.

Government with a big heart generally means a "soft" America. (Again, see Michael Barone's great book on this topic.) That is not a path toward freedom, which brings out the best in people, but it is a path toward collective mediocrity and eventual bondage. We should cultivate "big" and generous dispositions in our personal dealings, but design our government to ensure accountability and measurement of results according to our constitutional heritage. This means limiting the scope of opportunities for government to act based on open minds and big hearts.
Conservatives understand this, and I believe President Bush knows enough not to listen to Senator Reid's prescription here.



Scott Gunem said...

Yes, Pres. Bush has been the recipient of a great deal of unsolicited advice regarding his choice to replace Justice O'Connor. And some of that advice, as Ed argues, has been rather mediocre. In this category of unsolicited advice for the President, the best I've read has been offered by NY Times columnist David Brooks. Brooks encourages the President to pick an intellectual powerhouse, declaring "Nobody will care about superficial first impressions or identity politics tokenism a few years from now. What will matter in decades to come is whether you picked a philosophical powerhouse. Did you pick someone capable of writing the sort of bold and meaty opinions that will shift the frame of debate and shake up law students for generations?"

Shake up law students for generations? There's a litmus test that we might all agree on!

Here's a link to Brooks' article:

Ed Morse said...

Scott, your comment on Brooks is a good one. Thanks for bringing this out.