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A Victory for the Rule of Law
The Clinton administration has said from day 1 of the Elean affair that its interest was merely to uphold the rule of law. This is a noble sounding goal, and one that would normally warm the hearts of the stodgiest of conservatives. Those of us who have spent the past seven years agog at the sheer chutzpa of this administration knew that the rule of law was not even in Clinton & Reno’s playbook. The "law" for them has been an immensely malleable thing, defined primarily as bending the rules in the whatever direction it takes to further their cause and cause pain to their enemies.
Nonetheless, as the Elean controversy slowly staggers towards resolution, we have finally seen a shining example of the rule of law translated into practical reality. It hardly needs to be pointed out that it had nothing to do with the actions of the Clinton administration. No, the proud men who put the law above their own prejudices were the three-judge panel of the Eleventh Circuit Court of Appeals. Faced with a political hot potato, they took a look at the relevant laws, applied those laws to the facts of the case before them, and reached a decision that objectively upheld the law. It was a model of judicial restraint.
In the process the judges soundly thumped the administration’s pretensions that their actions were forced on them by the law – they had no choice, you see. The law made them assault Elean’s caretakers, into whose possession they had in fact placed the lad. The court pointed out in no uncertain terms that no aspect of the relevant laws mandated that the Justice Department takes the course of action it did. The administration’s actions were due to nothing but their twin warped desires to bully the Miami Cubans and play footsie with Fidel. But, the court sadly concluded, nothing in the law prevented the administration’s actions either. Proper respect for the separation of powers therefore mandated that the court not invent a new law to force a more desirable outcome.
Those conservatives who are distraught at the practical consequences of this decision need to take a step back and ponder the beauty of the Court’s actions. For years we have been screaming for judicial restraint, for judges who do not legislate from the bench but rather act within the limits of the actual law. That is precisely what the court did. I no more want to see Elean sent back to Cuba than John Rocker to Richmond. But in the long haul the return of judicial restraint is of far more consequence to America than is the fate of one sad little boy.
I find that I am becoming more and more of a "process conservative" as the years slip past. The future of our democracy relies far less on achieving specific policy objectives (tax cuts, right-to-life amendments, etc.) than on recapturing a process that respects the power of the individual and communities to run their own lives. The actions of the Eleventh Circuit Court of Appeals is remarkably heartening from this perspective. The end result was a lousy deal for young Elean, but it was a victory for America.