Goddammit, FINE. CURRENT EVENTS, FINE, I'LL DO IT. You bastards!

So, you may have heard the news: Supreme Court Justice Sandra O'Connor is retiring. Jesus fucking christ. I try my best to avoid talking about current events and then they throw something like this at me. Absolutely un-fucking-believeable. It's like they're out to get me, I'm telling you.

So, everybody with a mouth or a finger to type with has been talking and blogging about this. So far, I have a few potential nominees for Most Vacuous Statements Made and Snootiest Motherfuckers To Make A Comment, but that's neither here nor there.

What's important is that there's really only two kinds of justices, setting aside all of the insanely nuanced distinctions between cases and courts and time periods. The first kind is a justice whose ego makes them independent, someone you know was a lawyer at some point. Scalia may be a "strict constructionist" with some latent homophobia and a pro-Christianity tilt, but his chief defining characteristic is that he does what he wants. Stevens, who is nothing like Scalia and prefers to lawyer his way through cases with obscure and narrow arguments that often leave him as a very lonely concurrer or dissenter, likewise doesn't let people push him around. He's got a thing about guns, just like Scalia has a thing about gays.

I contend that Bush is looking for someone like Thomas- a party man whose beliefs are in line with the person and party who nominated him. Thomas is not an ego-driven justice. From all appearances, he knows his role on the court. He knows who put him there and why he was put there, and he has yet to depart from the party line. People often say "Thomas just signs his name to whatever Scalia writes." It's a generalization with some degree of truth to it, but Thomas has dissented from Scalia at times, and those cases provide a very clear picture of the difference between the two different types of judges I'm discussing here. Thomas famously dissented from all other justices in a recent affirmative action case. Whereas Scalia hates the 14th Amendment because of its rank ambiguity, and therefore by and large doesn't give a crap what states do one way or the other, Thomas knows he's supposed to vote against affirmative action. The law is never pure and totally seperate from politics, but despite their significant and ever-increasing overlap they are still different things. Thomas is politics, not law. Scalia, love him or hate him, is all about law. When Scalia allows his personal biases to shine through, it's because he begins from an untenable position: a strict constructionist forced to make sense of hopelessly ambiguous language, responding with hostility to the party that wants something, rather than nothing, to happen.

So while there will undoubtedly be fights and filibusters and lobbying on all the hot button issues, mainly Roe v. Wade, affirmative action, and possibly gay marriage and sodomy laws, the clear distinction that the Senate must keep in mind is the distinction between an ego-driven lawyer and a party-driven hack. If Bush winds up (by pure coincidence) nominating the former, then in spite of that person's philosophies on constitutional interpretation or their opinions on stare decisis, the Court will not suffer, though the nation may. The true danger lies in the naked desire of Bush and the GOP to demand and enforce lockstep compliance with their agenda.

Justices are going to legislate from the bench from time to time. It happens, get over it. Legislators pass shitty and unclear laws, and the Constitution itself is not a document that can be strictly interpreted start to finish. Judges have to fill in the gaps, and the Supreme Court gets to fill in the most important and hotly contested gaps. And sometimes good-faith interpretation and legal reasoning will take a back seat to personal biases and political leanings. It's unfortunate but inevitable. The real choice facing the Senate is whether they want a lawyer and judge legislating from the bench, or Congress and the President legislating via the bench. Anyone who has a shred of respect for the parts of the Constitution that are more or less clear should feel obligated to choose the former.

American history suggests that the phenomenon of party-hack justices is not unprecedented. Early on, the Federalist party, backers of a centralized national government and industrial/economic development, packed the courts with partisan justices, many of them distinguished southerners. After the Civil War and the passage of the 13th, 14th and 15th Amendments, guess what happened? Those same justices studiously ignored the Amendments and struck down the original Voting Rights Act.

The same party-hack justices who will be "strict constructionists" today (so dubbed by coincidence and a good press machine) will be plenty "activist" tomorrow or the day after. So all this claptrap about judicial activism is nothing more than a gigantic fucking smokescreen, and don't you forget it. Win or lose a particular court battle, you'll always do better with a real lawyer on the bench.

""The first thing we do, let's kill all the lawyers." This is often taken out of context through ignorance. These words were spoken by one of a group of rabble-rousers in "Henry VI" who intended to create anarchy and realized that, in order to do so, they would have to get rid of the lawyers first," - from my boss's door, source unknown.