Thursday, July 28, 2005

Of course it is . . .

There is an op-ed piece in the Strib today (July 28th) about Supreme Court nominations. It was written by the president of the local chapter of the Federalist Society, a cabal of wing nut lawyers. Her name is Kimberly Crockett. Of course it is. What did you think it would be, Ayuba Suleiman Ibrahima Diallo? She, I mean it, is a piece of work. Let's dig in:

Most of us are reaching for the antacid as we anticipate the high drama in our nation's capital surrounding John Roberts' nomination to the Supreme Court.
Kimmy, you need to relax a little, cut down on the coffee, maybe learn to meditate.
Those knotted stomach muscles, and the constipation that goes with them are because you are such such a hysterical control freak.

Although there has been no Supreme Court vacancy since 1994, the history of Republican nominations and the bitter rancor that results is a lasting memory. The media treat potential nominees like political candidates, wanting to know where they "stand on the issues." And now we have to master arcane Senate rules on filibusters and cloture to follow the debate.
Okay, let's look at the history of scorned Republican nominees since Nixon:

President Richard Nixon's 1970 appointment of G. Harrold Carswell was rejected largely because of Carswell's mediocre juridical record. A second Nixon nominee, Clement F. Haynsworth Jr., although well qualified judicially, was rejected in part because he appeared insensitive to ethical improprieties and participated in cases where his financial interest might have involved him in conflicts of interest. Similar allegations of impropriety led to the resignation in 1969 of Justice Abe Fortas, nominated to the Court four years earlier by President Lyndon B. Johnson. [more on this later]

President Ronald Reagan was in the next to the last year of his eight-year stay in the White House when his nomination of Robert H. Bork was defeated by the Senate after one of the most vociferous confirmation battles in history. Bork's rejection was due largely to his often-articulated and well-known conservative views and the fact that he had been named to replace a “swing vote” on the Court, Justice Lewis F. Powell Jr. (Subsequently, Reagan's selection of Douglas H. Ginsburg also failed to win confirmation. Before his nomination was official, Ginsburg asked that his name be withdrawn because questions were raised concerning his possible conflicts of interest and his past drug use.)

Okay, so you got Scalia and Thomas, and you want to make Robert Bork, a guy who even looks like Beelzebub (sorry Cheri), your poster boy?

Why does the appointment of federal judges, especially to the Supreme Court, consume so much political capital?

First, at the heart of the rancor surrounding judicial nominations is a fundamental disagreement regarding the proper role of a judge. President Bush has promised to nominate judges who will say what the law is and not what the law should be -- a difficult enough task.
Not really. Conservatives just trot out the old "activist judge" bromide when courts hold something they don't like. Don't believe Spotty? Just look at the convenient little list that Kimmy has assembled for us a couple of paragraphs down.

The Supreme Court has often strayed from the text of the Constitution to either create new rights or to strike down legislation, in effect arrogating unto itself the power to amend the Constitution. This upsets the delicate balance of power among the three branches.
Yeah, I am sure it makes it that much harder for people like John Ashcroft, Alberto Gonzales, and George Bush to balance in their jackbooks. Sort of like when you wear your spikey heels to the club, right?

Also as Spotty has observed before, it is the conservative justices who are more inclined to strike down acts of Congress. Didja know that, Kimmy?

The court has justified this violation of our constitutional scheme, in part, by proclaiming the Constitution a living, evolving document which, as Justice William Douglas declared in Griswold vs. Connecticut in 1965, contains "penumbras, formed by emanations." (Huh?)
As Spotty has written about before, here and here, Griswold held that a right of privacy existed in the Constitution, not because one specific provision said so, but that several provisions, taken together, led to that conclusion: the First, Third, Fourth, Ninth, and Fourteenth Amendments. Justice Douglas used those words all right, but they make perfect sense in context and in the description he was making. Do you know what penumbra and emanations mean, Kimmy? Maybe that's your problem.

Of course the Constitution is complex. Of course it must evolve. That is why the founders gave Congress and state legislatures (i.e. our elected representatives) an effective mechanism to amend it, and we have done so 27 times, starting with the Bill of Rights in 1791.
If we take out the Bill of Rights, the Constitution has been amended 17 times in about 215 years. Spotty has trouble just keeping track of them all: let's see the 21st amendment repealed the 18th amendment, and . . . .

Most of the cases we associate with judicial activism, such as Roe vs. Wade, reflect a liberal social agenda. Even if you agree with the underlying policy of certain landmark decisions (e.g., adults should be able to buy contraceptives or get an abortion), you ought to be alarmed.

When judges legislate from the bench, We the People get cut out of the process; we have little or no recourse except to try to get "our guy" on the court, further politicizing the judiciary. If the courts become just another political branch, our brilliant system of checks and balances will be lost.

Kimmy, I thought all the conservatives were saying that Roberts is your guy. And no, the people don't get cut out, judges still have to be nominated, vetted, and confirmed. Really, some of the antacids you are consuming are because of the democratic process of appointing a Supreme Court Justice. This is the system of checks and balances working, you ninny.

Second, the court system has been effectively used by political activists (primarily social liberals) to obtain policy results that might not otherwise be achieved in the nation's legislatures, or be achieved as swiftly. Abortion, sodomy, affirmative action, sexual harassment, same-sex marriage, outlawing religion in the public square, the expansion of criminals' rights -- the list goes on. The American Civil Liberties Union (ACLU) has been particularly successful in using the judicial branch to advance its agenda.
Again, Kimmy, Spotty has to say that your principal problem is that you don't like the results, and this aggravates your stomach condition. Relax. Not everybody is willing to do what you want them to do.

Conservatives, used to playing defense, are just beginning to push back with public interest firms of their own. Judicial imperialism, so cherished by the left, is one of the reasons Republicans are doing well politically. Americans don't like being bullied by judicial fiat.
How the hell is protecting a same-sex couple or religious minorities bullying you? Actually, Kimmy, and this is very very important: what you want is greater license to bully people who aren't just exactly like you, you little white bread creep.

Third, modern Supreme Court justices are serving longer and longer terms, with the average term exceeding 25 years. Both sides of the aisle pick young judges to extend the president's legacy.
Congratulations. This is basically true.

Then, to compound matters, the honorable justices -- be they liberal or conservative -- don't seem to know when it's quitting time. (Rehnquist is fighting cancer at 80; Stevens is going on 85. Thomas is the only justice younger than 65. This court is an elite gerontocracy, but that is a matter for another day.) Because a nominee may serve the equivalent of six to eight presidential terms, all appointments are momentous.

Fourth, while it has always been a presidential prerogative to appoint judges who share his political philosophy, some critics of Bush want to deny him this constitutional power, or even more strangely, require him to appoint someone with whom he disagrees (a consensus candidate).
But wait, I thought you just said that politicizing the Court was a bad thing? Spotty is confused. Actually, he thinks you are, Kimmy.

President Bill Clinton filled two vacancies and both nominations sailed through the Senate. Justice Ruth Bader Ginsburg, who served as the general counsel to the ACLU for years, was confirmed with only a peep from Republicans. Justice Stephen Breyer had reliable liberal credentials and has not disappointed his "constituency." During the hearings, the criterion for most Republican senators was competence, not ideology, though they passionately disagreed with Ginsburg's and Breyer's judicial philosophies and leftist views.
Actually, Bill Clinton conferred with Senator Orrin Hatch about the Ginsburg appointment. Spotty doesn't have a link at the moment, but he recalls that Hatch is really the person who came up with Ginsburg as a suggestion and recommened it to Clinton. Hatch brags about it in a book.

Under our Constitution, you have to win the presidency to get the power of appointment. The Senate's duty to "advise and consent" requires an up-or-down vote; it does not confer the power of choice on the Senate. Unless a candidate is unqualified in some material way (like Abe Fortas), the Senate is expected to defer to the president.
Well, Kimmy, that's not entirely correct. Funny you should mention Abe Fortas. Abe was a sitting Associate Justice nominated by Lyndon Johnson to be Chief Justice on the retirement Earl Warren (another great conservative boogey man; maybe the boogey man). Abe didn't get an up or down vote; his nomination was - gasp - filibustered. First one in Supreme Court history. Nixon's boy Haynsworth got a vote.

All these civilized traditions must cut both ways; otherwise we will have breakdown. The next Democrat in the White House will get to fill any vacancies, so liberals should focus their energies on winning the hearts and minds of voters, instead of attacking and maligning Bush's nominees.
Let's see if I understand the deal, Kimmy. The Dems are supposed to play dead because there is a Republican in the White House or they are politizing the Court. And you will make a binding agreement on behalf of all conservatives to do the same when we next have a liberal in the White House? Get back to me if we have a deal.

No comments: