November 22, 2004

Facing the Judges

Justin Katz

A word on where Andrew and I differ most significantly on the Taricani matter: Andrew believes that one problem that conservatives face when attempting to trim the powers of the judiciary is that they "pick a hot-button issue -- gay marriage, flag burning, 'under god' in the pledge of allegiance -- to advance the cause of placing limits on the power of the judiciary." In the course of the public debate, the judicial aspect gets lost in the heat of the social issue.

Of course, as one who has written often about the issue of same-sex marriage, I'm predisposed not to want other issues to detract from the fuel that helps the traditional marriage side keep its case moving. Even accounting for that bias, however, I still think social/cultural issues are the ones on which to stand against the judiciary. The central reason, putting aside the difficulty of motivating the public to become concerned at all, is that endemic judicial activism has been most egregious in its imposition of judges' cultural values. That is where they seem most motivated to cross lines, so that is where the lines must be bolded.

The case of Jim Taricani involves what might be characterized as government theory. Strategically, that means the principles behind the struggle will have to be explained to the public (and the media) in order to give the movement any momentum, and such explanations tend to tip the scales back toward apathy. Furthermore, while hot-button issue may overshadow judicial considerations, more targeted volleys will highlight the specific questions involved, allowing the larger picture to slip away.

In the Taricani/Torres case, those specific questions will be the use of protective orders and, especially, of court-appointed special prosecutors. These are certainly issues worth addressing, but I don't know that they're worth expending a great deal of the President's political capital. More importantly, given my priorities, I'd fear that success would give social activists a rhetorical pin with which to deflate the judicial activism side of the other battles.