Right Reason
Buckley, William E Jr.
supported the fast of Father Miguel D'Escoto, the Nicaraguan foreign minister, who was protesting U.S. aid to the contras. Their endorsements prompted the Nicaraguan bishops to ask the Brazilian...
...This intended compliment pro-claims Kraft's limitation: he was merely an able practitioner of a familiar craft...
...Johnny Carson marvels at Buckley's vocabulary...
...But more often what shows is his remarkable energy, his readiness to be provoked and to provoke back...
...In our tripartite and bicameral legislative system, in which the parties have moreover become increasingly weak and decentralized, laws emerging from Congress tend to be "radically incomplete...
...A few paragraphs later: "Ratiocination is subversive in revival meetings...
...In contrast, I often think of one American missionary in Managua known to pass lists of suspected counterrevolutionaries to stat- -ecurity...
...But the caseload crisis, in Posner's view, is just a piece of the problem...
...He believes that the "formalist" canons of construction are outdated, arguing, for example, that judges rarely look to the words of a statute...
...Their endorsements prompted the Nicaraguan bishops to ask the Brazilian hierarchy to "avoid interference which can bring most serious consequences against the already suffering church in Nicaragua...
...Nor do I see how—to use Posner's words"sharp legislative practices" (such as vote-trading) undermine legislative intent...
...He finds that power in Jackson's ability to "persuade the black community that just as he, Jackson, is primarily a black man, they are primarily black men and women, and that therefore their ethnic bond is the chain that binds them together above all other kinships, attenuated, that they share with their neighbors...
...He insists on testing political claims against the universe he inhabits, and the constant In The Federal Courts Crisis and Reform, Judge Richard Posner of the U.S...
...We may presume total mastery of the genre...
...The liberal who sees in Buckley only a snob may doubt that a rich man can enter the kingdom of heaven...
...And in-imitable...
...most of its adherents support the FMLN...
...And having done so (Ronald Reagan and Margaret Thatcher are among those he has inspired), he still, at age 60, hasn't used himself up...
...The reader still wants to know, of the day's salient event, How will Buckley react to this...
...Almost forty years ago, Justice Felix Frankfurter made a similar point: The vital difference between initiating policy, often involving a decided break with the past, and merely carrying out a formulated policy, indicates the relatively narrow limits within which choice is fairly open to courts and the extent to which interpreting law is inescapably making law...
...Having earlier criticized the predominantly liberal tendency to equate the interpretation of laws with their creation, Posner departs from the traditional conservative view as well by criticizing strict constructionism, which he defines as "sticking close to dictionary meanings" even where changed circumstances over time render the literal words of a statute incoherent...
...As he points out: "The biggest challenge that the federal courts . . . confront and will always confront is how to interpret statutes and the Constitution...
...And it trusts the reader to share his wide-angled interest...
...He illuminates the point by contrast with "Martin Luther King's dream, which was that white and black Americans would in due course mix as though differences in the color of their skins were irrelevant...
...It's that kind of universe...
...instead, they look to the body of case law that has grown up around a statute...
...How can you not read on...
...The next Buckley column begins: "On the whole, I favor frequent rather than in-frequent changes of tenure by Soviet leaders...
...military aid, conditional on human rights improvements...
...Everything in it matters and finally coheres, and it's up to us to make such connections as we can...
...He reflects that "the Soviet Union must feel an enormous contempt for Americans who are playing horse to its Lady Godiva...
...To say that, because of this restricted field of interpretive declaration, courts make law just as do legislatures is to deny essential features in the history of our democracy...
...Nevertheless, church problems in Nicaragua have led some Catholic leaders to reevaluate liberation theology...
...Rare words, jokes, abrupt colloquialisms, anecdotes, analogies, all serve him in bringing his points home...
...He might marvel at Buckley's one-liners...
...If he hadn't already accomplished all he set out to do, it would be easier to appreciate him properly...
...A nice aphorism, but the piece is no mere put-down of Jackson's flamboyance and "exuberant tribal-ism...
...Jackson begins: "Integral—but absolutely integral—to the success of the Reverend Jesse Jackson is his idiom...
...So why is he still interesting...
...There was a time when groups felt it was possible to use Marxist analysis without falling into Marxist ideology," San Salvador's Auxiliary Bishop Gregorio Rosa Chavez told me...
...They did so because they feared less the power of the executive branch than the legislative branch with its potentially William Bradford Reynolds is the Assistant Attorney General for Civil Rights...
...Critics to the contrary, Buckley is the opposite of an ideologue...
...This definition, I believe, is too narrow...
...It's a strange vocation for a nun, but I'm sure her intentions are good...
...Hehas long since made good on the threat perceived by the nameless liberal at Yale in the late forties...
...Posner condemns judicial activism ("We must clothe the naked beast") but acknowledges that, to a partial but inevitable degree in our political system, judging is inherently political...
...Whoever said that had a point: it was an accurate prophecy that Buckley would go on to make a difference in this world...
...but Buckley is the real egalitarian, in that he hasn't forgotten, as the liberal has, that even a poor man can go to hell...
...A piece on Jesse...
...It's a big one, all right, but what makes it the instrument it is is not the long words but the unfailing color...
...Carter is the President of the United States, not the chairman of a Committee to Free the Hostages...
...Oh yes: that vocabulary...
...That is true...
...Posner admits that the causes of the caseload growth are unclear, but he does hazard a few reasonable guesses...
...A Buckley column is as likely to say "wow" as "manumission...
...the words of a statute may frame underlying principles which allow the original intent to be deciphered even in changed circumstances...
...Even some of Buckley's fans have been heard to grumble of late that he tends to dash off his columns carelessly nowadays, after producing them at the rate of three a week for twenty-five years...
...Posner does not restrict his inquiry to substantive issues...
...Buckley has RIGHT REASON William F. Buckley, Jr., edited by Richard Brookhiser/Doubleday/$19.95 Joseph Sobran THE AMERICAN SPECTATOR MARCH 1986 33 changed political conunentary by expanding its frame of reference, the available range of experience in which be finds political relevance...
...Meanwhile, they still criticize the justice system and compile reports on abuses—even those committed against their critics...
...While he was still a student he was called "the most dangerous undergraduate Yale has seen in years...
...Further political involvement by the courts is caused by "the interactions between . . . federal law and the law of fifty quasi-sovereign states [which] have made many fields of American law immensely complex, with a multitude of ill-fitting seams that require continuous...
...and highly creative, judicial patchwork to avoid chaos...
...It displays the nonpareil...
...Vote-trading is a means to an end...
...Posner begins by noting that the Founders intended to create a judiciary of unprecedented, but not free-wheeling, power in contrast to the more restricted English judiciary...
...The assassinated Salvadoran bishop Oscar Romero argued that officially sanctioned repression justified armed insurrection...
...Buckley makes them better than most...
...tyrannous majoritarianism...
...Unlike the universe of socialism, this one has souls and sin in it...
...I once heard him tell a story he heard from Gene Kelly about being aboard a plane that went into a terrifying nosedive: The story turns up in a column about KAL 007...
...Yet the Salvadoran hierarchy's willingness to assess fairly the gains made in their country since 1980 shows the importance of a transcendent, non-partisan church...
...I suppose because he is so Joseph Sobran is a senior editor of National Review and a nationally syndicated columnist...
...Acknowledging Duarte's progress toward democracy, they have even backed limited U.S...
...This, he writes, is because "the Constitution has given the federal courts broad authority with (in many places) imprecise direction, and the authority granted is thus inherently political...
...Sometimes his weariness shows...
...Examining the "explosion" of court cases since 1960, when the present administrative tribulation of the courts began, he notes that whereas the number of cases filed in district courts in the previous quarter century had increased by only 30 percent, from 1960 to 1983 such cases increased by 250 percent...
...Without it his heroic up-from-slavery posture simply evaporates...
...In any case, that theory is not as central to this book as it is to many of Posner's other writings, so I will leave judgment to others...
...A fine, dry lead, tangy with mocking allusion to his own notorious anti-Communism...
...Why is it that Buckley has never won a Pulitzer...
...Such legislation, whether of the public interest or special interest variety—a distinction Posner stresses—is not only declared as official but is, on its face, official as declared...
...We see now that this is impossible...
...But we need fear no diminution in his power of sarcasm...
...In eschewing the traditional canons of construction—such as the rule that one should start with the language of a statute, or that construction is unnecessary if the statute's language is plain—Posner favors "an imaginative reconstruction" of legislators' motives rather than legislative intent embodied in the language of the statute and its legislative history...
...small popular church still exists in El Salvador...
...The Iranian hostage crisis yields the tart reminder that "Mr...
...Right Reason, edited by Richard Brookhiser, culls his best columns and articles over the past seven years, a few dozen of the thousand or so he has written since his last collection, A Hymnal...
...Today, a Reviewing a new collection of William Buckley's columns is a little like reviewing a new novel by P. G. Wodehouse, or a new mystery by Agatha Christie...
...Because each of his columns is an intimation of an abundant and resourceful personality...
...Nor is Buckley just trying to,be "nice' about a man who sets most conservatives' teeth on edge: He is analytically satisfying his own curiosity about the real power of Jackson's appeal...
...We take his influence for granted...
...to argue so, I believe, is to confuse ends and means...
...Few statutes are ambiguous to the point of sheer legal relativism...
...He is one of the reasons why we are where we are...
...the only question in the present case is whether the master is up to snuff...
...He reminds us that the Framers plainly intended the legislative power and the judicial power to be separate, as declared respectively by Articles I and III of the Constitution...
...The ambit of Posner's expertise is not surprising...
...That is what strict constructionism properly means...
...It is the reaction of a whole personality to a large phenomenon, not that of the advocate in search of victory...
...The difference is that the presence of mind that used to appear in slashing debate now furnishes him with a deeper observation: the contrast between King and Jackson...
...unsettling, unassimilable...
...The only way to imitate a Buckley is to be equally brilliant in a totally different vein...
...Salvadoran clergy and laymen who did pastoral work with the poor wee' brutally persecuted...
...While the FMLN's church supporters evince the blind faith that motivates Nicaraguan true believers, the Salvadoran bishops understand that local politics are not static...
...In the courts of appeals, similarly, the number of signed opinions between 1960 and 1983 increased by 183 percent...
...Buckley, for all his trademarks of conviction and manner, would surprise if he didn't surprise...
...He seldom surprised: he was natural Pulitzer material...
...I doubt that either word ever appeared in a Kraft column...
...Judicial power is necessarily limited, he says, for "not only must the judge wait for a case to come up to him before he can lay down a rule, but with cases coming up to him in random order hewill find it difficult to establish an agenda for political action...
...It denies that legislation and adjudication have had different purposes, function under different conditions, and bear different responsibilities...
...A little touch, but full of awareness of the perils of self-repetition, an awareness that becomes an effortless shared joke with the reader...
...Court of Appeals for the 7th Circuit embarks on a much-needed and wide-ranging discussion of the American federal court system, moving over vast fields of contemporary law from the caseload crisis in the courts to strict constructionism and legal education...
...They never anticipated that the federal judiciary, the "least dangerous branch," would in time become dangerously usurpative...
...Case-load is not necessarily workload, however, so it is instructive that a comparison of another benchmark—the number of trials completed between 1960 and 1983—shows a still enormous increase of 110 percent...
...the end, however reached, and whatever the legislators' motives, is the legislation to which a public representative is willing to stake his name, job, and reputation—the legislative intent...
...THE FEDERAL COURTS: CRISIS AND REFORM Richard A. Posner/Harvard University Press/$25.00 William Bradford Reynolds 34 THE AMERICAN SPECTATOR MARCH 1986...
...Case in point: "James Reston struggles valiantly in his column and says perhaps they shot down the Korean airliner because they were invaded by Napoleon...
...Strict constructionism, he says, wrongly assumes legislative intent where legislative compromises and vote-trading have occurred, effectively obscuring any clear and straightforward intent...
...Buckley is often said to have "mellowed" (sometimes to the disappointment of old fans who yearn for red meat), and it's true enough...
...Yuri Andropov dies...
...The late Joseph Kraft used to be hailed as the successor to Walter Lippmann...
...In certain cases, the American judge is left to decide political questions, but the basis on which he does so—that is, whether his judicial philosophy permits the usurpation of legislative prerogatives—is decisive in separating the judicial wheat from the activist chaff...
...In the Supreme Court, the number of applications to review appeals courts decisions rose from 870 to 2,841 over the same period...
...In many respects, pre-1981 church-state and inter-church conflicts in El Salvador bear similarities to the problems in Nicaragua...
...Now this is meditation, not polemics...
...But judges who look to case law without due regard for the original statute's language and legislative history are simply misguided in doing so...
...Posner is perhaps best known for his sociological-utilitarian approach to the law—an approach that is rigorously empirical (some would say reductionistic) and deeply influenced by economic thinking (Posner is a close colleague of economist and Nobel laureate George Stigler at the University of Chicago), and for which he has been criticized both by conservatives, such as Judge Robert Bork, and by contemporary liberals, who can be expected to dislike anything that is, so to speak, metaphysically appreciative of the free market...
...Chief among these is the altogether plausible explanation that the Supreme Court since the early sixties "enormously enlarged the number of rights upon which a federal court suit could be founded," mostly as a result of broad interpretations of the Bill of Rights, the Due Process and Equal Protection clauses of the Fourteenth Amendment, and other acts...
...His role is inherently one of reacting rather than initiating...
...a prolific opinion-writer, he is widely regarded as one of the most industrious minds on tl}e federal bench...
...This does not mean, of course, that whole bodies of case law should necessarily be ignored or overturned...
...This suggests, I think, that the crucial "litmus test" for judges involves not politics but philosophy—whether a judge believes his role is fundamentally (though not exclusively) one of law-interpretation, or whether he prefers taking into his own hands the primary legislative task of creating law...
...efflorescence of his mind shows that this is a large, unpredictable, and often delightful universe...
...The very act of imitating a real original shows you to be alien to the model you admire...
...Posner of course understands that the political decision-making that American courts assume does not mean they should be given carte blanche...
...But he's the same man...
...A "neutral" church, in this sense, is good for human rights and for Christian solidarity...
Vol. 19 • March 1986 • No. 3
