Mark Schmitt puts his finger on the main problem with the Bush administration, a situation that affects every concern we have here. We are mainly interested in how courts are used by governments to legitimize commands, but within that I think all my colleagues here would say that there is an underlying assumption that government institutions will be limited by popular opinion. I won't presume to present their views in detail, but I would bet that they, like me, think that when the government decides to use courts as a thumb considerations of public reaction will limit how hard that thumb presses down.
But what if that doesn't happen? What if the idea of "governing from the center" has been replaced by governing to win elections that will convey control of government institutions, including courts, to facilitate policy decisions that don't have majority support? And, even worse, what if this kind of political strategy migrates to both parties, as it already surely has? We've seen some evidence recently that courts, as well as other institutions, tend to follow political trends in the general electorate, but most of that research looks so yesterday in the present environment. If courts get populated with judges who have specific policy agendas involving anti-majoritarian programs - that's what the Federalist Society is trying to create, after all - and governments are willing to use them, then the idea of judicial independence and of a check on the "popular branches" could go south pretty quickly. Think the Mexican Supreme Court under the PRI.
- Tracy Lightcap
This probably isn't relevant to this exact story, but everyone should see today's New York Times story on the removal of a veteran US Attorney over the Abramoff investigation. The US Attorney is in Guam. The source is http://www.nytimes.com/2005/09/27/politics/27lobby.html?hp&ex=1127880000&en=a5d08a01f4f3fb4e&ei=5094&partner=homepage
(Sorry, the comment posting feature won't allow HTML sourcing.)
Posted by: Andy Whitford | September 27, 2005 at 04:04 AM