Because I Said So

When authority is already established "Because I said so" is a legitimate rationale. That's why parents don't have to explain every decision to 2 year olds. I'm the mommy and I said so. But what about in issues of law? Why does a judge get to say that something is legal or illegal when another branch of the government says the opposite? Aren't our three branches of government equal? That's our checks and balances system. Without it we're on our way to a banana republic.

So though I cheered the decision that the NSA electronic surveillance program was ruled illegal, I wondered under what basis a judge gets to overrule the US District Attorney. In this NYT op-ed, Ann Althouse, a law professor explains how the system is designed to work:

Why should the judicial view prevail over the president’s?
This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.
This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.
This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury.

This system is why Roe v Wade was a set up case. It's why not just anybody could sue to stop the NSA surveillance. And it's why the judiciary can't just weigh in with its opinion on the legality of the whole thing, but has to deal only with SPECIFIC cases. When I consider how the system is designed I'm just totally in awe. We live in an amazing nation with an incredible system of governance -- a blending of the best of western tradition and classical thought. Now if we can just remember what we have and how it's supposed to work, and be patient while it does, ignoring the demogogery of the rabble rousing politicians and seeking the common good....

Unfortunately, some of those forgetting are judges. Lets hope the judges hearing other cases connected with the NSA program do a better job in delineating the legal rationale, not the political, in their rulings. And this shows why judicial temperment is possibly the single most important criteria to consider when judges are appointed. If they are truly doing their jobs under our system their personal views truly are irrelevant. Yes, I know our political view shapes our thinking, but those with the right temperment are capable of accepting opposing viewpoints. (Another reason why the MoveON crowd is bad for America, since they want to make ideology the main criteria in determining judicial worthiness).

OK. End of rant. Read the op-ed, and think about what we would want from a judge hearing OUR case whose political perspective was our polar opposite.