One phrase that we're likely to encounter when we read or listen to commentary about the potential nominee to the Supreme Court is "judicial mainstream" (e.g. Sen. Schumer on Meet the press on 7.10.05).
He said:
We hope there'll [sic] be a nominee that even though their views don't agree with ours are at least within the mainstream some--a judge who will meet the one test that really matters, they will interpret law, not make it.
The irony of his phraseology, i.e. "they will interpret law, not make it," I will cover sometime in the future. His whole statement, in which he referred to a judicial mainstream, is typical of rhetoric we hear from those opposite the president on the ideological/political spectrum. Really, this rhetoric is slowing being adopted by fellow conservatives. Perhaps conservatives have always used this phrasing to describe an ideal candidate for the Supreme Court. To whomever we can trace its origin, really, is unimportant What matters is what is meant by "judicial mainstream" or just "mainstream" in reference to the judiciary.
What can we take this phrase to mean? First, what are its component parts?
Judicial - "Of, relating to, or proper to courts of law or to the administration of justice."
Mainstream
- "The prevailing current of thought, influence, or activity." In its
adjectival form, it may mean "Representing the prevalent attitudes,
values, and practices of a society or group."
Combining the two produces the predicate 'prevailing current thought in the judiciary.' Simply, by judicial mainstream we must take to mean ones belonging, acceptance, and yielding to prevailing current thought in the judiciary. Jurists in the 'judicial mainstream' then are those who belong to/partake in the prevailing current throughout in the judiciary.
Have we been helped any by breaking down the phrase "judicial mainstream," then amalgamating it? We must take Sen. Schumer to mean by his statement that he hopes for an appointee who belongs to the prevailing current thought in the judiciary. I am unsatisfied because we must now know that the prevailing current thought in the judiciary is in order to begin understanding what is meant my judicial mainstream. How do we determine what the prevailing current thought is? Doesn't this approach assume (or necessarily take) that there is one prevailing 'thought.' I mean by this, doesn't trying to take the pulse on the prevailing thought in the judiciary presuppose that there is only one pulse. Are we assuming there to be a consensus on the law?
I believe I am having difficulty in fleshing some of this out because I am not trained to do so adequately, but I also believe that there might be another, contributing explanation. Do we commit a category mistake when we say "judicial mainstream"?
Category mistake can be defined as "[t]he error of ascribing to something of one category a feature attributable only to another or otherwise misrepresenting the category to which something belongs." Speaking of the judiciary in terms of a mainstream, which necessarily demands there be an "out" of the mainstream, is an unhelpful effort because the judiciary cannot be referred to in such terms. By its nature, law is adversarial. The judiciary, where legal battles are fought, weighs the merits of arguments taking into account precedent, the plain language of the law, and, oftentimes, public policy. Suggesting that there's a mainstream in law denies the adversarial nature of law and the judiciary. In the least, it reduces the acceptable (legal) arguments to a narrow field labeled "mainstream." While I don't mean to suggest that all opinions and arguments are legitimate--arguing for the legality of slavery, for instance, would be reprehensible--suggesting there exists a narrow corridor of opinion called the mainstream denies the that law is constantly rewritten, upheld, and reversed.
"Judicial mainstream" remains, then, an unhelpful phrase, whether used as a noun or an adjective. It's meaning defies stability because the user often determines what's considered "mainstream." We should refrain from using it.