Sunday, March 15, 2009


Ruth Bader Ginsburg is photographed in the ‘Boston Globe’. She recently visited the New England School of Law and gave what appears to be – the ‘Globe’ would never put it thus – the standard PC ‘How I Did It’ speech.

Well, good on her.

However, a few thoughts.

I’ve recently Posted on her Dissent in Gonzales v. Carhart (“Ginsburg and Carhart”, 13 Feb., 2009). As I noted there, she deploys many of the new standard illogicalities, incoherences, and too-shrewd sleights-of-mind in that Dissent.

What got me thinking today? First, the venue: the New England School of Law is not your ivy-league law school (not that of itself that proves anything). It has on its faculty a lawyer by the name of Wendy Murphy, whose opinions are consistently and vividly ‘pro-woman’ and ‘pro-victim’ (and I have nothing against ‘women’ as such or persons victimized (and who isn’t, these days?).

I have been thinking recently that We have not paid enough attention to what is being taught in law schools these days. After all, Murphy is loud, but she’s not particularly original – and she is a faculty member. And Ginsburg is certainly not a ground-breaking – let alone compelling – legal thinker. So they’re getting this stuff from somewhere.

In my Ginsburg Post I had mentioned what I’ll say here again: the terrible and not coincidental synergy between a) Second Wave feminism (especially its “ideological” variant) and b) the judicial ‘philosophy’ of the late John Rawls.

The gravamen of Second Wave legal ‘vision’ (not to say ‘thought’) seems to be this: Whatever has to be done to make it easier for ‘women’ (which by definition means making it harder for ‘men’) is ‘justice’, and neither the Constitution (contaminated by patriarchy, perhaps irretrievably) nor any long-standing justicial practices of Western justice (rules of evidence, statutes of limitations, etc.; all equally contaminated by patriarchy) can be allowed to stand in the way of the ‘revolution’.

This, as you can see, is the old “Law at War” or “Combat Justice” concept of both Soviet and Nazi jurisprudence, utterly antithetical both to Western concepts of Justice and to the very core of democracy and a democratic society. It was later deployed by the Bushist Imperium, as sooo many of the commentariat will (quite accurately) point out nowadays. BUT decades before Bush, Cheney, and the Children of Darkness picked it up, this concept had been inhaled and thoroughly metabolized by the sistern of the Second Wave.

And it was Rawls* who made a career for himself by providing – in the early 1970s – just the legal ‘cover’ that would ‘baptize’ the spawn of Stalin’s and Hitler’s legal ‘vision’ for the use over here of those who did ‘get it’ and wanted very much to share (read: impose) their vision upon everybody else (read: the lumps who ‘just didn’t get it’).

Essentially, Rawls cobbled together a legal ‘philosophy’ that in its time was all the rage: in the interests of ‘justice’ (as Rawls meant it, though he never clearly defined it) it was OK for the “elites” (read: those who agreed with him) to disregard Constitutional principles and practice in order to get that ‘justice’ going. He was especially interested in his approach being taught in law schools, where the genuine ‘elites’ (read: those who agreed with him and with each other) could train for the Bar and the Bench and then go on to put his strategy of imposition into practice in the courtrooms of the nation, and the higher the court the better.

But he was realistic. Naturally, many of the law-school grads would go on instead into a career as a ‘legislator’; they could serve the cause there by passing laws based on his views, whether such laws conformed to the Constitution and established judicial practice or not. (This was in the very early 1970s.)

Can it be a coincidence that We have seen not only the Bushist disregard for the Constitution and judicial practice and authority, but also – long before Bush – the spate of laws that for decades have posed grave Constitutional corrosions? Why Congress now passes laws that it apparently doesn’t even read (the Patriot Act was hardly the first) ?

In the photo of Ginsburg’s talk I have seen, she is framed at a classroom podium in one of those ‘arena’ classrooms you find in colleges; rising behind her are several rows of female students – and one lone male.

I see absolutely no reason why females cannot be attorneys, judges, or legislators and pols. But I most certainly do see a problem if generations of students are being trained to work in the courts or legislatures, having been trained in the legal ‘visions’ of ideological feminism and Rawlsian strategy.

Forget the general university classes and the ‘tenured radicals’ and Theory and deconstruction and all of that. I think the Law Schools have been the key to the corrosion of the Constitution for quite some time. What are they teaching in there? What do its graduates believe?

As I have also said, I do not agree that judicial candidates should be interrogated as to how they would vote on this or that particular type of case. If the candidate is intelligent, competent in Law, and upright, then confirm him or her, and come what may. That’s how the system is designed to work.

But if a candidate is actually ‘trained in’ and ‘committed to’ a philosophy whereby ‘elites’ impose their vision on the country, regardless of what the Constitution or the common weal indicate, then I think such a person is per se and prima facie and in radice and ab initio unqualified to hold judicial office in the American system. And, hell, I’d advise voters to ask their legislative candidates too, because the same point applies to the Congressional as to the Judicial.

We can see where the Executive recently decided – no doubt having watched the lethal whackery of the previous few decades – that the Constitution was ‘quaint’ and that legal restrictions, even the most stringent and clear, were ‘fungible’ and could be ignored with impunity ‘in a good cause’.

The only difference between Left and Right now lies in the definition of just what constitutes that ‘good’ that automatically justifies overriding the Constitution and democratic process and politics.

We are in a frakking heap o’ trouble.


*The book to read is David Lewis Schaefer’s “Illiberal Justice: John Rawls and the American Political Tradition”, Columbia (MO), University of Missouri Press, 2007. It should be noted that Professor Schaefer had detected the lethal dangers to the American political tradition hidden in Rawls’s ‘philosophy’ as early as the late 1970s and published on it. This book is an expansion prompted by the extent –ominously ‘bipartisan’ – of the corrosion so brutally evident by the mid-2000s.

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