After guiding my CivPro class through the mysteries of transfer of venue this morning at the Law School, I transfer myself to another venue, the Café Monmartre, for a little debate about the Alito nomination for a group of lawyers from the American Constitution Society (the liberal answer to the Federalist Society). I'm there to convince them that they ought to support the appointment of Samuel Alito to the Supreme Court. It's impossible, of course, but I do have some arguments: we need strong, well-established jurists on the Court, not stealth nominees and compromises; the wheel will turn again and allow a Democratic President to appoint a brilliant and distinctive liberal jurist to the Court; liberals should not want the institution of the Court to be degraded by political fights in which ordinary people are encouraged to believe that there is no creditable rule of law and judges are nothing but democracy-usurping activists.
The place looks awfully bohemian for a lawyerly event, but this is Madison, my friends:
It's very hard to get an unblurred shot of the place:
But in some ways a blur is appropriate -- symbolic, perhaps of the blurring of the line between law and policy, which I recommend sharpening ....
... and my opponent in the debate prefers to keep well blended. We must recognize that the Justices are "making public policy" for the country, he says, as I keep saying that progressives have a stake in preserving the rule of law and the legitimacy of the courts. They need an articulable legal theory that is as powerful as the conservative's originalism, I say. My opponent fairly seethes: "The concepts such as original intent of the framers are pernicious in my opinion." A member of the audience rejects my assertion that originalism is comprehensible to ordinary Americans and that liberals need a theory that is equally appealing in the political debate, where, now, their favorite judges are too easily painted as "activists" who are "legislating from the bench." Who believes the conservative's argument? -- he asks and says that everyone must know that what the courts do is politics by another name. I said, "If I had a videotape of you saying that and I put it up on my website, do you have any idea what the reaction would be?"