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JUSTICES STILL HAVE POWER TO ‘MAKE’ LAW Having choked down the half-baked slop you and Dahlia Lithwick offered as “Opinion and Satire” [" A New Word for Liberal" April 14], I have to share my thoughts. First, the phrase “strict construction” has no substantive meaning. It is a rationalization for a result or an excuse for one’s own ideological preferences. No appellate judge � and especially not a justice of the United States Supreme Court � “calls balls or strikes.” That isn’t “simple”; it is simplistic. It is also wrong. Matters rise to higher courts, and especially to the highest court, because they are unprecedented. The justices do indeed “make” law, not “apply” it. We ought to be very careful about the values of the people we put in the position to exercise that power. Anyone who pretends the power doesn’t exist is a charlatan and if we really understand the nature of constitutional government, we should not laud charlatanism in those candidates who practice it, even if we demean the ideas of those who oppose them. Second, every time I hear about Nino Scalia’s “originalism” I can only think of him channeling James Madison. Because if he isn’t, he isn’t any more “original” than any other lawyer or judge. We have the Constitution � neither living nor dead � an 18th century document written for the ages and designed to be adapted by amendment and � if you believe John Marshall � interpretation. Things change, our Republic changes. Changes throw up questions when they collide with that text. One of the ways we can look for answers is to ask how our decision would best preserve the core values of the Constitution. (You know, the tiresome things like limited government and human rights.) We can look for answers in the text of the Constitution, in the commentaries of the founders and in the precedents which our predecessors created when they grappled with similar questions. But here’s the deal: When you do these things, you do them with the eyes of 230 years of history and precedent and the personal experience of the 20th and 21st centuries. You also choose what you look at. To interpret the constitution is to create new law. It is something you can’t avoid. You can only pretend not to. Third, with my 20th century eyes I note that it has been almost 50 years since there was a significant “liberal” presence on the court. Frankly I doubt the court has ever had a “liberal” majority. Law, being anchored in precedent, is not a liberal profession. There are no more than two mildly “liberal” justices serving now. The vast majority of serving federal judges at all levels are Republican appointees. If conservatives can’t be happy with that kind of judicial alignment, what will please them? Finally, never forget the great bogeymen of “liberal” Supreme Court decisions: Brown v Board of Education, Miranda v Arizona, Gideon v. Wainwright, Reynolds v Sims and Baker v Carr. If you don’t remember what they decided, read them. Then ask yourself if you want to live in a United States where they had been decided differently. I don’t. Harold W. Borkowski Oakland JUDGE FORCUM DESERVES CREDIT IN CONCERT HALL SETTLEMENT I was pleased to read your account of settlement of the City of San Jose-Santa Clara County litigation concerning construction of a new concert hall at the Santa Clara County Fairgrounds [" Settlement Is Music To Santa Clara's Ears," April 11]. You omit, however, the most important catalyst for resolution of that San Mateo County Superior Court case, namely, Judge Mark Forcum. He conducted continuing settlement conferences, which eventually culminated in dismissal of the county’s cross complaint. Judge Forcum merits major commendation for the achieved settlement, which I am happy to supply. Quentin L. Kopp Redwood City Editor’s note: Quentin Kopp is a retired judge of the San Mateo County Superior Court. You can send Letters to the Editor to The Recorder, 10 United Nations Plaza, 3rd Floor, San Francisco, CA 94102; by fax at (415) 749-5549; or at [email protected].

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