Monday, July 09, 2007

The Greenhouse effect, part 1.

In yesterday's New York Times, Linda Greenhouse, that paper's legal op-ed columnist, was actually in the op-ed pages with a story about liberal lawprofs' dream to take back the Supreme Court.

It is close but yet so far. What is often overlooked in current commentary on the Court is that, while it is one vote away from being consistently and deeply conservative, it may also be one vote away from becoming perhaps the most liberal Court in our nation's history. The "left wing" of the Court - Breyer, Souter, Ginsburg and Stevens - has become an extremely cohesive - and relatively extreme - liberal voting bloc. This group is rigidly separationist in matters of church and state, believes that the abortion license invented in Roe v. Wade must be absolutely unrestricted, would not apply strict scrutiny (or anything worthy of the term) to supposedly "benign" racial classifications, etc. Were they to become the dominant wing of the Court, the shift in direction would be every bit as extraordinary - I would argue more so - than the supposed "conservative victory" of the Roberts court.

One vote away and the Democrats with a great chance to take the White House. Why so glum?

Part of the problem is demographic. The liberal bloc is older than the conservative bloc. It seems inconceivable that Stevens and Ginsburg will still be on the court following the next presidential term. Since you'd be hard pressed to find a qualified candidate for the Court more liberal than these two - much less get him or her confirmed - much of what the a Democratic president would do would amount to maintenance.

But if Anthony Kennedy retires? Given his self perceived and much enjoyed role as America's Conscience, that will likely happen only by the hand of God. But if he does hang it up with the Dems in power, there could be an opportunity to create a positively Scandanavian majority.

The problem will, of course, be confirmation. Just as E.J. Dionne says that the Dems should do everything they can to prevent another John Roberts or Sam Alito, there is no chance that the GOP will roll over for a doctrinaire lefty like they did when Clinton appointed Ginsburg. She was eminently qualified for the court but every centimeter as far to the left as Robert Bork was to the right. In response to Bork's nomination, the Dems radically changed the Senate's role in confirmation, adding a verb to the English language (to "bork"). The GOP reverted to the more traditional stance when Ginsburg was nominated. That will never happen again.

So the liberal lawprofs recognize that they must build a public taste for their particular form of justice. How do they do that? This is where the Greenhouse piece gets interesting.

More later.


Billiam said...

You left out the left's new penchant for citing foreign law in their decisions, rather than The Constitution. That is very scary.

steveegg said...

The problem that a Dem President and Dem Senate would face in confirming a liberal for SCOTUS will exist only so long as they believe they can lose both the Presidency and the Senate at the same time again. If eliminating the ability of the minority party to stop a nomination will advance their 74-year plan to create a one-party system with them as that one party, they will not hesitate to do so. A SCOTUS nomination that tips the Court liberal definitely qualifies as such.

illusory tenant said...

penchant for citing foreign law ... rather than The Constitution.

"Rather" than the Constitution? I don't think so.

Anonymous said...

This post is a complete fraud. You throw terms around, e.g., liberal and conservative, that have no fixed meaning in this context and you issue declarations about which justice falls in which category and where the court falls on this scale relative to the past.

And, its all bullshit off-the-shelf hard rightewing spin. Against the panarama of court history, your "extreme" liberals are mainly perfectly ordinary moderates, operating in the center of what, until the last years was understood as the range of jurisprudence that represented differing views but was consistant with history and shared notions of government, law, etc.

On the other hand, Thomas, often Scalia, and it seems Roberts and Alito - come from out of nowhere, a revolutionary force that represents a complete break with legal, institutional, and political history.

In singing from the same hymnal that all rightist Republicans use, you are repeating a strategy that, while thoroughly dishonest and horribly destructive to public debate and discussion, is among the best political strategies ever deployed.

For 30 years - the right has steadily filled the federal judiciary with ideological activists who have no real philosphy but are oriented solely to remaking the law in order to assist with a political, rather than legal, agenda.

And, here's the kicker - every couple of years, the right screams omigod! the liberals own the courts and they want us all dead, gay, and godless.

About 70% or more the federal judiciary was appointed by Republicans. A poll of the public would no doubt reflect a false belief in the liberal judiciary you folks lie about.

Don't get me wrong; this is genius. you guys are winning on this front hands down. Its merely sleazy an hard to stomach coming from a lawyer. And, the gloss of erudition you attempt to slop all over it is a little embarassing.