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Tuesday, January 10, 2006

Outside The Judicial Mainstream.

Can we be honest here? That is a useless phrase. Watching every Democrat on the Sunday shows spouting the line put my head in a tizzy. The truth is no one a Republican president nominates for the Supreme Court will be liked by most Democrats. The reverse is likely true as well. That is politics. I can accept that to an extent. However Senator Charles Schumer can't be honest and say he'll never like anyone President Bush nominates. So he kept repeating the phrase "outside the judicial mainstream" as if the phrase meant something.

It doesn't. Sometimes you need to be outside the judicial mainstream. Dred Scott said it was okay and within the judicial mainstream to own black people as property. A civil war, a few constitutional amendments, and thinking outside the judicial mainstream thinking changed that. Plessy v. Ferguson created the seperate, but equal doctrine. I'm doubt most blacks, Indians, and Asians in the United States at the time thought they had equal opportunities seperate from white society. It took outside the judicial mainstream thinking in Brown v. Board of Education to allow racial integration of schools. Overruling precedent is often considered outside the judicial mainstream. So much for the concept of stare decisis.

Funny how suddenly the concept of being outside the judicial mainstream is a bad thing. Being an activist judge or thinking outside the judicial mainstream is bad when a result gets handed down you don't like. Such phrases are useless and have no meaning. Will Judge Alito, if confirmed to the Supreme Court, be a good justice? Talk about a loaded question! I guess it depends on what side of an issue you're on. To many people that criteria is the only one that matters.

It hate it when politics and political commentary mix with the law and the legal process. The results are never pretty.

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