Justice Scalia said yesterday that the government will be unable to attract the best-qualified lawyers for judgeships if it does not increase judge salaries.
I think he has a certain point there. A lot of lawyers go into the business to make their fortunes, and that doesn't happen on a judge's salary. However, not all lawyers go into law for the same purpose, so there is a bit of a crap shoot, though I think he's probably right with the best and brightest.
There are things I really like about Justice Scalia. As a general rule, I like his Originalist approach to interpreting the Constitution and agree with him that if the People dislike a course of action, they have a responsibility to educate and inform themselves and vote accordingly. However, I think his approach is shortsighted on a couple grounds. First off, he believes in the four corners approach to legislative interpretation - that a person should look only at what was written in the law or on the Constitution or in the code, and nothing else, to determine what the legislation or founders intended. The logic is that if legislation intended something to be in the law, they are intelligent people, and they could have so put it in there. This is flawed logic, though. Primarily, if there's a question as to what the framers of a law might have intended, then it makes sense to look at the legislative notes that accompany the bill as it makes its way through to law, as they often explain what the thought process of the legislation was. Next, an originalist, strict constructionist approach would lead to some ridiculously narrow interpretations of the law - for example, the Constitution is written in an exclusively male perspective, which means that the founders intended only for men to hold office. If they had intended women to hold office, then they easily could have put female pronouns in addition to the male pronouns. For those who retch at the idea of Hilary getting elected to the office of the President, that might not be a bad concept, but it's not in keeping with modern society (and for what it's worth the Civil Rights Act would be unconsitutional from this perspective because the Constitution is the Supreme Law of the land; it would take an amendment to allow women to hold office from this interpretation). As another example, an American would be entitled to accept an emolument from a Queen, but not a King. The Sixth Amendment guarantees the right to assistance of counsel, but does not expressly provide that an individual is entitled to represent himself, which would seem to indicate that the Founders did not intend for individuals to self-represent.
Another reason I disagree with Justice Scalia is because I think he ignores the facts of the current America. We are a country where the government relies on the relative ignorance of the voting public, telling us what we stand for, and what we are against, instead of the public informing themselves and telling the government what we want, and any unpopular acts require time to be overturned, if they are overturned at all (which they usually aren't). The people need to be protected from the overreaching of Congress and the demands of the executive - and that duty runs to the Courts. It is the job of the Courts to ensure that the rights of the People are not overborne by the invasion of the People's liberties by the government by requiring the govenrment to rule according to the concepts laid out by the Constitution - to ensure domestic tranquility, provide for the common defense and secure the blessing of liberty to ourselves and our posterity. If you want to call that judicial activism, then I guess I'm an activist, but I believe that political inefficiency as a governing tool is wrong when it comes to the rights of Americans.
But then again, I'm a bit of a dreamer.
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