In Stone’s recent Huffington Post article, he gives a two point defense of why ABA recommendations should be the sole authority in the picking of justice nominations and a rebuttal to conservative arguments for conservative balance in the justice system. Of course I see trouble with Stone’s premise for his arguments. However, it is pointless to give these points credence since they are irrelevant.
“Judges are not supposed to be political. They are supposed to be above politics. Indeed, this is a fundamental premise of the American judicial system. This is not to say that every judge always achieves this aspiration, but it is the central premise of the "rule of law." Thus, political parties are not very reliable determinants of sound legal doctrine.”
Stone admits though dismisses the important truth that the jurisprudence in this country is guided by political bias, but fails to see his own bias seeping onto the page like a bleeding Trojan horse. The fact of the matter is that politics has everything to do with the nomination of justices. Although the ABA may pick a justice based on the views of the average lawyer, it does not speak to the views of the average voter. The founders were quite clear in the constitution and framework laid out in the Federalist Papers that the Executive Branch and Congress were to be the sole authority regarding appointment of justices, not the lawyers. The purpose of the judicial branch is to decide justice for the people, not lawyers. Who is likely to best represent the views of the average voter? A panel elected by lawyers or politicians elected by the people? The whole point of our system of checks and balances is that our elected President pick justices based on the ideology that won them election into office.
Stone would rather crowd out the credence of conservative thought on jurisprudence based on the beliefs of the average lawyer than to take on the difficult task of convincing the people of his liberal legal opinions. This type of reasoning is common from the liberal left who often base their arguments not on fact or history, but on whatever suits their world view at the moment. If you can't sell your ideas to the average person, then narrow the task of justice nominations to a very small population famous for their liberal ideologies.
I wonder if Stone would be using this same argument back in the mid 19th century where the legal consensus was that property was determined by the color of one’s skin? Just because 9 out of 10 lawyers believe it, doesn’t make it true but it does serve those who hold the same opinion.