WASHINGTON -- The short answer is: J. Harvie Wilkinson III. A longer answer to the question of who President Bush should nominate to fill today's Supreme Court vacancy is:
Constitutional law is rife with clashing certitudes generated by too-clever theories purporting to illuminate the one valid approach to construing the Constitution. These theories obscure uncertainties inherent in all legal reasoning, and especially in construing a written Constitution in light of precedents produced by applying it in political contexts, and to controversies, unforeseen by its framers.
Many conservatives are rightly dismayed by exercises of judicial discretion so sweeping they resemble legislative willfulness, not tethered to analyses of the discernible intentions of the Constitution's framers, or of its text, structure, and yield of precedents. Undismayed liberals eagerly blur the distinction between legislative and judicial functions: Having lost much of their power to persuade electoral majorities, liberals seek success through litigation rather than legislation.
Liberals and conservatives, Wilkinson has written, differ about ``the place of compassion in the democratic process.'' The human condition is prey to myriad misfortunes. ``Victims of social circumstances, however, are altogether distinct from victims of another's violation of a specific legal duty. It is the job of the democratic process to ameliorate the effects of the former. It is the judiciary's charge to rectify the latter.''
Dismay about abuses of judicial discretion drives some conservatives into a misguided quest for a jurisprudential holy grail -- a theory of constitutional reasoning that will virtually expunge discretion from judging. This goal is chimeric.
Construing the Constitution should begin with what the document's pertinent language meant to those who wrote and ratified it. But construing can rarely end there. Historians continue to deepen our understanding of how varied and occasionally contradictory were the intentions of various framers and ratifiers. History always informs constitutional deliberations; it rarely is dispositive.
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