Friday, June 13, 2003

Prof. Balkin continues his discussion of Richard Posner again in discussion with someone from Volokh. All I can say is that conservatives are unwilling or unable to understand a respect for process "as such." Everything comes down to ends. Balkin quotes Juan 'Non-Volokh':

"My question for Balkin is this: If he wants a "truly Supreme Court," should Bork have been confirmed? If not, why is Posner acceptable? (And if the answer is: Posner's less conservative, then what does that tell us?)"

Balkin responds quite reasonably that it is not simply a matter of ideology but of the ability to present that ideology in a clear and consistent manner and to present it, if indeed there is an 'it' in a manner that a correspondent can engage with and reply to with the same complexity. In a very real sense, the issue is not one of answering a question but framing it, and the goal is not to win the game but to play it well. Bork did not play the game nearly as well as Posner. If you think my use of a sports metaphor cheapens the subject you miss the point. Unless you want to define justice down to the last detail, to replace judgment with a series of commandments, eliminating judges altogether, you need rules for discussion. If you want to play a game of tennis, you follow the rules for tennis. For both it is the rules that allow us to judge at all. The rules are the structure of the game. Bork may just say "I'm right, Damnit!" but that means no more than walking over the baseline to the center of the court, tossing the ball over the net and calling it an ace. Rules are what allow us to judge the players skill. More on Posner:

"He kept on writing book after book, article after article. And what is even more remarkable is that lots of these books are quite good, even though he argues lots of things in them that just drive me up the wall."

Juan Non-Volokh -along with many conservatives- seems not to understand how one meaning can come from both those sentences. I think he would consider it absurd to even try to reconcile such a contradiction. If that is the case, and I think it is, then he should understand that what he is defending is the root structure of fascism, which sees rules as an obstruction and value only in victory. He is not alone in this, and it worries me.

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