I don't like Charles Krauthammer. He puts forth a wrongminded viewpoint with a sneer. All the same, it is useful to check him out now and again, since Krauthammer speaks of what is on other people's minds. And, to be fair, has kernels of truth telling that makes you want him to be less of an asshole. He fails you nearly every time all the same.
Case in point is his piece on the bashing of the judiciary, something Prof. Marci Hamilton (with her own biases showing) challenges pretty well here. Krauthammer thinks the over the top judge bashing is extreme, but ends up saying that maybe it will be helpful, since it will temper judicial overreaching! This is known as wanting to have your cake and eating it too. Therefore, his remarks that we should choose better judges, not rail blindly against those already there are useful, but surrounded by dreck that makes them much less so.
The piece has the usual anti-liberal potshots, which in the process again rob the editorial of its validity. First, it defends Bush v. Gore, snidely talking about liberal "whining" concerning its inherent illegitimacy. But, he says, the Supreme Court was the only institution that could have ended the "fiasco" with "the immediacy and legitimacy" that it did. Well, sure, the first part is right. It ended things quickly enough (you know, after delaying judgment to the last minute in a classic bait and switch).
The "legitimacy" part is dubious though. The Constitution set forth various avenues for legitimate ends. Art. II suggests states (including state courts) should have wide discretion. The Twelfth Amendment suggests that Congress should have an important role in disputed electoral vote counts. And, the Fifteenth Amendment suggests somebody, including the courts, in particular should prevent a basic deprivation of voting rights of blacks.
Obligatory potshot at Roe v. Wade with talking point reference [so many people have used it that it is basically a cliché by now] to Justice Ginsburg's criticisms of it. I spoken of this before, but let me just say that it is but a reflection of the era -- overreaching by a government across the board trying to do too much at once.
And, yes, at the end of the day Ginsburg supported some protection (via equal protection*) of the right by the courts. Not that such facts (as well as the connection of Roe to the right to use contraceptives, the number of lower courts that decided the same way, and legal scholarship of the day -- including by retired Justice Clark -- that supported the result) are raised by Roe bashers.
Likewise, he bashes the Massachusetts ruling respecting gay marriage. In fact, he broadly speaks of "abortion, gay rights, and religion in the public square" as "legislative" areas that do not involve any "suffering [of] disenfranchisement" that the courts are inherently meant to protect. The right of one state court out of fifty to decide something that might be over the top is rather clear in my eyes ... if you respect federalism and such.
Not that critics like Krauthammer appears to respect such things. [At times, he seems a principled crank, but he loses himself in the end.] Anyway, what planet is he on? Does he really think that women not able to control their own bodies or gays found to be unfit to even have relationships are not in some core way "disenfranchised?" After all, Brown did not involve voting rights per se.
Anyway, how about the attempts by those mean liberals (the conservatives are not mentioned, conveniently) to enact their political agendas by "judicial fiat" for fifty years? Show me a case where they did so in a way compared to Bush v. Gore. Roe is shoved in their faces. No comparison, especially if the critics deigned to look at its background. Fifty years is a bit far back actually, unless one wants to include Brown. But, liberals used a lot more than the courts during the civil rights movement. [This by the way includes the women's movement ... Roe was not written in a vacuum. I do wonder though. Are Ginsburg’s efforts in the courts during the 1970s legitimate? Or is she only useful for a punchline?]
The Warren Court did push through many criminal procedure reforms, perhaps too quickly, but then again as shown by an old column by CK against suspicionless drunk driving checkpoints, the courts generally are right to safeguard such things. Gay rights? The right to be with a partner without being arrested is not exactly an extreme use of the courts in my book. Again, this small victory was accomplished after years of efforts in other areas. And, besides being exaggerated, the Constitution suggests that religion and state should not mix, and the courts are darn right to uphold the principle.
Perhaps, Krauthammer and others of his ilk needs to couch some basic truths like judicial independence with the usual conservative shibboleths. Everyone plays this game, though not as crudely as he has a tendency to do (again, it's basically his schtick, so you have to forgive him for it). Still, bullshit is bullshit.
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* David Brooks had a recent column in the NYT on how Roe needs to be overturned for the public good. See, the reason why we have so much division and such in politics (especially in the field of judging) is because of Roe. Yeah right. Anyway, as one letter replied, if given a choice between politics and women's rights, I'd choose women. Or, as another letter suggested, let's overrule Roe, and base the right on equal protection of the law. In effect, the Casey decision did just that: it reaffirmed privacy rights, but made repeated references to women's equality.
[In fact, the letters overall made suggested why the column was so shallow ... far too typical of his work product. Meanwhile, Paul Krugman continues to rally on, this time pointing out the ills of our health system. Why cannot they get a conservative Krugman sort that can provide good commentary? Is it a contract issue or something? Like the Mets having to stick with a few subpar players?]