GERSON’S MISPLACED HATRED FOR AL FRANKEN…. Our first hint that Washington Post columnist Michael Gerson really hates Al Franken came two years ago this week. Gerson, George W. Bush’s former chief speechwriter, drew upon some of Franken’s satirical work to insist that Franken would push our “political discourse … toward vulgarity and viciousness.”
It seemed like an odd complaint coming from a man who foisted George “F**k Saddam” Bush and Dick “Go f**k yourself” Cheney onto the world, but we nevertheless know with the benefit of hindsight that Gerson’s fears were unfounded. Al Franken has been an exceptional senator, bringing a degree of intelligence and seriousness of purpose that the institution sorely needs.
Nevertheless, we were reminded of Gerson’s Franken hatred again today, with a column about the Minnesota senator’s recent speech on conservative judicial activism at a gathering of the American Constitution Society.
One of Franken’s points often goes unsaid: the “balls and strikes” metaphor popularized by Chief Justice John Roberts is badly flawed. As the University of Chicago’s Geoffrey Stone explained in a terrific piece in April, the metaphor fundamentally confuses the responsibilities of a jurist: “Constitutional law is not a mechanical exercise of just ‘applying the law.'”
The law defines bedrock freedoms in ambiguous ways, and the Constitution did so deliberately — the “framers fully understood that they were leaving it to future generations to use their intelligence, judgment and experience to give concrete meaning to the expressed aspirations.”
For Franken, the problem is that conservative judges claim to be calling balls and strikes, while consistently using their power to side with corporations and powerful interests over the needs of the public at large.
Gerson was outraged.
Franken mocks Roberts’s description of the role of a judge as an umpire, applying rules he does not create. “How ridiculous,” Franken says. “Judges are nothing like umpires.”
No, in Franken’s view judges should be more like the Committee of Public Safety during the French Revolution — an unelected group of super-legislators who issue binding verdicts based on their advanced conceptions of justice and class warfare.
Of course, Franken said nothing of the kind. Gerson just got a little hysterical and let his imagination run wild.
The columnist added, “Franken is attempting to be serious, but he should not be taken seriously. A judge who does not think himself an umpire may end up an autocrat.”
Jon Chait replied, “Really? Anybody who acknowledges that judicial rulings sometimes involve interpretation rather than merely discerning objective fact is not only wrong but doesn’t deserve to be taken seriously?”
Apparently. Perhaps the more important lesson is that columnists who perceive judges interpreting ambiguous 18th-century legal frameworks as little more than robots are the ones who “should not be taken seriously.”