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Thursday, September 22, 2005 


Something interesting from Volokh...

Ginsburg's statement about her list and how she wants a woman is not the important part of this. Here is the real meat of what she said:
There are "some women who might be appointed who would not advance human rights or women's rights," Ginsburg told those gathered at the New York City Bar Association.
This is how Ginsburg and many other judges see their role. They think that they should be "advancing rights." A lot of Democratic senators said the same thing during the Roberts hearings. I think that is absurd.

She is not a legislator. She should not be making policy in this way. She sure as hell shouldn't be actively looking for new or expanded rights in the Constitution. It says what it says; it means what it means. Ginsburg's judicial philosophy is embraced by liberals almost without exception. It's a way to get a particular result without all of that messy democracy and public debate. That's fine and all, but remember this, my loose originalist friends. The door swings both ways. Someday, you will not have control of the Court and conservatives with the same judicial philosophy will begin "finding" rights too. They probably won't be the rights that you agree either. Maybe they will find that a fetus is a human being and therefore entitled to 14th Amendment protection.

That is the danger of this judicial philosophy. It gives the individual judge too much power to interject their personal policy preferences into the Constitution. When that happens, the Constitution becomes meaningless. Our country then becomes a judicial oligarchy.

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