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Which do you prefer for judicial philosophy?
Fundamentalist 0 (0%)
Minimalist 6 (100%)
Total Votes: 6
Judicial Philosophy Preference?
Topic Started: Oct 10 2005, 06:20 PM (42 Views)
cmoehle
Member Avatar
Chris - San Antonio TX
Having first read Sutherland et al's Judicial Tyranny I am now reading Sunstein's Radicals in Robes for balance.

The latter categorizes judicial philosophy into fundamentalist and minimalist. Fundamentalist here is not religious, but judicial philosphy. From the book:
Quote:
 
Fundamentalists have a broad and ambitious theory of constitutional interpretation.... Funamentalists know that current constitutional law does not reflect their own views, and they tend to feel angry and even embattled about that fact. For this reason, fundamentalists have radical inclinations; they seek to make large-scale changes in constitutional law.

Nor are these categories political. Again from the book:
Quote:
 
Fundamentalists are opposed by minimalists, who dislike ambitious theories...and who do not want to do much more than is necessary to resolve cases. As a matter of principle, minimalists do not want to take sides in large-scale social controversies....Minimalists celebrate the system of precedent in this spirit....By itself, minimalism is a method and a constraint; it is not a program, and it does not dictate particular results.


IMO, Judge Roberts said he was a minimalist. I agree with Sunstein's analysis in John Roberts, Minimalist: He's conservative, but he's no fundamentalist
Quote:
 
Many people feared President Bush would try to replace Sandra Day O'Connor, a minimalist conservative, with a nominee promoting an ambitious agenda for remaking American constitutional law. But there is not much evidence that the president's choice, John Roberts, has such an agenda. In his two years on the federal bench, he has shown none of the bravado and ambition that characterize the fundamentalists. His opinions are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead pays close attention to the legal material at hand. He is undoubtedly conservative. But ideology has played only a modest role in his judicial work.
.

By Bill O'Reilly's argument in Who's Looking Out for the Christians?, Maureen Dowd is a fundamentalist:
Quote:
 
Of course Ms. Dowd worships at the altar of Roe v. Wade, and any person who might be pro-life is automatically unsuitable in her mind to hold a decision-making position. But the truth is, Harriet Miers has not publicly stated her position on abortion and probably will never do so. Thus, Ms. Dowd is objecting to Ms. Miers because she attends an Evangelical Christian Church in Texas, and we can't have those kinds of people on the Court, can we?


By the same token, so is Tony Perkins a fundamentalist, from Choice of Harriet Miers for Court dividing conservatives:
Quote:
 
“I have a concern that Miss Miers was helping to legitimize the drive of homosexual organizations for power and influence over our public policies,” Perkins wrote. “You can be sure Harriet Miers will be closely questioned on these and other matters when she appears before the Senate Judiciary Committee.”



The question is, which do you prefer?
Politics is the art of achieving the maximum amount of freedom for individuals that is consistent with the maintenance of social order.
--Barry Goldwater
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tomdrobin
Member
Using the descriptions you provided, I think I would prefer minimalist SP judges.
If the need arises to amend the constitution, there is a process to do that (ie; women's sufferage etc.). Judges should interpret the law not create it.
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