The inception of the Trump administration, at a time when there is a Supreme Court vacancy and more than a hundred vacancies on the lower federal courts, presages unedifying controversies about nominees’ attitudes toward such allegedly burning issues as abortion rights and ‘gay’ rights. Our contemporary senators and editors are equipped with less and less historical perspective and have little interest in the permanent functions of the federal judiciary: the enforcement of the horizontal and vertical separation of powers, the protection of procedural due process and freedom from fear, especially for political actors, and the maintenance of predictability in the civil law necessary to a functioning economy. Yet for a series of classical writers from Aristotle and Aquinas to Montesquieu, corrective justice involving restoration of the status quo and punishment of deviations from it was the central function of judges; distributive justice producing changes in society was a matter for the ruler in authoritarian states and the legislature in democratic ones.
Thus it was that the ill-fated Judge Robert Bork, beset with five days of questioning about “privacy” and abortion, escaped from the hearing room without a single question being asked about his views on criminal procedure, criminal sentencing or federal criminal jurisdiction.
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