Judicial Pretensions

UPI has an editorial bashing the 9th Circuit for their decision on the Pledge of Allegiance:

God bless the 9th U.S. Circuit Court of Appeals. Judges in America's most liberal court have finally written a decision so blatantly ideological that it may well cause a popular uprising against liberal judges and their pretensions to exclusive authority over interpreting the Constitution.

Right, as if liberal judges were the only ones who pretend to have exclusive authority. Are they any judges out there who think that jurisprudential philosophies other than their own are acceptable? I haven't read any of their decisions if they exist. Reading a little further, we find the classic ill-informed 'originalist' attack on liberal judges:

The appellate judges of the 9th Circuit know perfectly well that such an equation was never the intent of framers who wrote the First Amendment. These liberal judges simply do not give a damn. Their personal modern-day ideological agenda is what matters to them, not the intent of the authors of the Constitution.

Conservative judges would never allow for that. Well let's look at a few interesting areas of law: segregation, affirmative action, and gender discrimination.

First, let's have an originalist explain Brown on its face. Mike McConnell has tried (and failed in my opinion). Considering the authors of the 14th Amendment allowed school segregation in D.C. and in most Northern states (i.e. the ones that didn't ban blacks outright), how can that decision be seen as anything other than flaunting the intent of the authors? Damn those liberals and their pretensions. Look what they did! They forced white children AND black children to attend the same schools! What would the framers have thought!?!

Now let's ask Scalia why the Constitution bans all racial classifications (thus disallowing affirmative action). Do you see that in the text? I sure don't. He can say that it's the most natural reading of the text, but that doesn't make it true. The fact that the authors of the 14th Amendment were in no way committed to color blindness (see segregation above) and passed the Amendment in large part to give Congress power to make race-specific remedies, makes Scalia's claim more dubious. It certainly suggests that maybe, just maybe, his personal views on affirmative action might be informing his 'natural' reading of the text.

Finally, let's hear Robert Bork waffle some more on whether women are protected by the 14th Amendment. It doesn't take a history degree to realize that the authors of that amendment didn't believe in gender equality. Yet the amendment has been so applied, apparently another result of liberals wresting control of the country away from the intent of the framers.

Let's not even touch Bush v. Gore. It's just too much evidence, and wouldn't make it a fair fight.

I will say that I'd sincerely like to hear more of Bush's "common-sense nominees" argue against Brown or gender equality on a constitutional basis. It would ensure their defeat in the Senate and popular opinion.

The point? Of course the liberal 9th Circuit has made questionably principled and decidely liberal decisions. Just as the conservative 4th Circuit has made questionably principled and decidely conservative decisions. Just as the Supreme Court has made questionably principled and both liberal and conservative decisions in its time. It's not a problem of politics, it's a problem of principles, pragmatism, and jurisprudence. And it affects all our judges, NOT just the liberal ones.