February 4, 2009

How Dahlia Lithwick would like you to think about Supreme Court appointments: liberal = moderate, conservative = extreme.

Dahlia Lithwick has this new piece about the kind of Justices we might expect Barack Obama to appoint to U.S. Supreme Court:
The prospect of a liberal slot on the court being filled by a liberal president has some liberals dreaming big—as was evidenced in a piece last weekend, by Adam Liptak, asking whether President Obama should appoint someone "who by historical standards is a full-throated liberal, a lion like Justice William J. Brennan Jr. or Justice Thurgood Marshall?"...[

[Liberals tend to grouse] that there is no left-wing counterpart for Justice Antonin Scalia.... [The complain that the] court's liberals are just not very persuasive.... [that they] lack a revelatory constitutional vision.... [and that they lack fervor].....

If, then, we're totting up all the qualities the current court's liberals ostensibly lack, we'd need to blend boldness with passion and persuasiveness with volume and then hope the next candidate also comes with some sort of just-add-water Sweeping Constitutional Vision kit....

My own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court, even if she did exist, and that we need to yank our wish list out from under the enormous shadow cast by Antonin Scalia, William Brennan, and Thurgood Marshall, anyhow. Yes, they are forces of nature, and the court is a better place for having each of them. But pining for a liberal Scalia isn't the way to push the Roberts Court into the future. The day of the lions may be ending at the court. And that might not be a terrible thing.
So Lithwick's read of Obama is that he's a centrist, and he's not going to give us The Scalia of the Left/The Resurrection of William O. Douglas.

Now, here's Lithwick just about exactly one year ago, talking about what sort of Supreme Court Justice John McCain would be likely to inflict on us:
[The conservative legal movement is] a multifaceted organizational and institutional structure that has become the only game in town. Despite some missteps, today's conservative legal movement has become as powerful as it is through coordinated and careful effort.

The practical upshot is that when McCain constructs his legal team, he will have just one institutional framework from which to pick—the same movement conservatives that produced Roberts and Alito.... [And] McCain has already agreed to fall in line....
I wrote at the time that that didn't make sense to me:
McCain has embraced the generality of a conservative judge, but within that category, there will always be an array of judicial minds. Once he is elected, he'll be choosing from that array, and it remains fair to wonder whether he will pick more flexible pragmatic judges like O'Connor and Kennedy.

In fact, I think that is the line he probably perceived between Roberts and Alito... [McCain had seemed to express a preference for Roberts over Alito.] I think people at the time did see a distinction like that, and even if McCain doesn't have a deep, lawyerly knowledge of law, he very well may have heard talk that Alito was more of an ideological conservative and Roberts had a instinct toward moderation and consensus.
What's striking me now is the difference between the way Lithwick thought about Obama and the way she thought about McCain. What can account for it other than a preference that she has for a strong liberal judge? Why is it that Obama is seen as having centrist, pragmatic inclinations and McCain was not? I can't help thinking Lithwick is running interference for some very liberal nominee to come. She has a strategy to portray that person as actually a moderate, someone to whom fair-minded conservatives should not object. But when faced with McCain, back when the presidency was still up for grabs, she had reason to scare readers that McCain would appoint a hardcore conservative.

You know, it's not just Dahlia Lithwick. This is the stock argument that you hear again and again from people who want the Supreme Court to move to the left: liberal = moderate, conservative = extreme. I'm just writing this up as a blog post because I happened to run across that old McCain item on the same day I read the Obama thing. Usually, I just sigh and think, yeah, that again.

***

By the way, did you know there have only been 2 Supreme Court Justices named Henry? The first was Henry Baldwin (1780 - 1844), appointed by Andrew Jackson:
Baldwin found himself at odds with the dominant personalities on the Court he joined, especially Joseph Story. Within a year of his appointment, Baldwin expressed the wish to resign. He missed an entire Term due to illness; and, a mental condition progressively disabled him....

Baldwin wrote almost nothing of interest for the Court on the Constitution...

He appeared to suffer from occasional bouts of mental illness that made him obstreperous and even offensive to others. He did not get along with his fellow justices; and he was violent and ungovernable on the bench in his last years.
Well, that didn't go very well!

The other Henry was Henry Billings Brown (1836 - 1913), appointed by Benjamin Harrison:
Brown authored in excess of 450 majority opinions during his years on the Court....

Brown will probably be forever marked by a single opinion he authored for a majority: Plessy v. Ferguson....
Ah, my... Things did not go well for the Justice Henrys.

105 comments:

Jack said...

I was surprised last year when Mickey Kaus, who is my favorite centrist, stated that he always regarded Dahlia Lithwick, as the last word on legal or judicial appointment issues. I consider myself a conservative centrist and Dahlia Lithwick is, in fact, the last word I would ever think to take on any legal or judicial appointment topic.

Richard Dolan said...

Yes, spot on.

"I can't help thinking Lithwick is running interference for some very liberal nominee to come. She has a strategy to portray that person as actually a moderate, someone to whom fair-minded conservatives should not object."

If I were to guess, the appointment of Elena Kagan as the SG gives you a pretty good idea of who Team O is thinking about as the next justice, particularly if its the Ginsberg seat that comes open. That's a typical route to the Court, and she positioned herself (sort of) as "actually a moderate" at HLS. Granted, given the reality of law schools today, and particularly Harvard, it's not hard to appear "moderate" when compared to the rest of the menagerie.

How she finesses the really tricky waters in briefing the difficult and controversial issues that are already looming at the SCOTUS docket will probably tell the real story. Given that she's the SG, I don't think she'll be able to get away with the "I was just pushing the Administration's view, not my pesonal view" shtick. As the SG, she will largely be "the Administration" for most of this stuff. But if the game is courtwatching, I'd keep my eye on her.

traditionalguy said...

What's the chance that Obama will slip us a Henry V type of Justice? "We few , We nine Justice Band of Brothers, we will have the zeal of visionaries that shed their blood together for the ACLU today" A vision that says No law without perfect equality of every result for everyone like Stepford citizens. That shoukd keep us Lawyers fully employed this century.What me worry!

ricpic said...

...a lion like...Justice Thurgood Marshall?

More like a hippo.

Michael said...

Ann runs this and people are actually supposed to believe 99% of the postings won't be...in lockstep with the usual conservative, anti-Obama drivel?

Sure.

John said...

Oh God Ann. Your expectation of rationality and consistency from Lithwick iis so quant and charming.

You have to understand that from the fanatics point of view everyone who disagrees with them is a dangerous extremist and anyone who does agree is a reasonable moderate. Lithwick is a complete whackjob extremist. So it makes perfect sense that she would think anyone who doesn't agree with her completely and totally is a dangerous extremist. Psychologists call it projection. Historians call people like Lithwick when given any responsibility names like Murat and Georbbles.

Skyler said...

moderate, centrist Barack Obama

I almost fell out of my chair. This is the most extreme leftist in the worst way, and some people actually consider him a moderate and centrist?

Our country is in SO much trouble if this is what passes for intelligent analysis.

chickenlittle said...

Obama will try for Lawrence Henry Tribe

Henry said...

Litwick's positioning isn't surprising, the only question is whether or not she knows she's doing it.

Henry said...

Skyler -- Obama has a deep calm voice. Of course he's moderate and centrist.

John said...

"Litwick's positioning isn't surprising, the only question is whether or not she knows she's doing it."

No she doesn't. I seriously doubt Lithwick has ever had an honest conversation with any principled person who disagrees with her. She has spent her entire life in the cacoon of academia, the media, and her father's law firm. Lithwick no doubt wakes up every morning and thinks that she is entirely free thinking and fair. If it wasn't so sad, it would be scary.

Palladian said...

Does a Supreme Court seat held by a woman have to forever pass to another woman? Is that the new rule?

jdeeripper said...

But when faced with McCain, back when the presidency was still up for grabs, she had reason to scare readers that McCain would appoint a hardcore conservative.

Of course she was engaging in irrational fear mongering.

She was either outright lying or engaging in deep seated self deception.

As a legal scholar she knows as much as anyone that the Presidential appointee to the Supreme Court doesn't become a Justice without the consent of the Senate.

A President McCain appointee would have no chance of being confirmed by the majority Democrat Senate without being a moderate centrist if not a liberal.

No scary, right winged devils need apply.

And Delilah Dingbat knows that so why pretend otherwise.

Michael said...Ann runs this and people are actually supposed to believe 99% of the postings won't be...in lockstep with the usual conservative, anti-Obama drivel?

Michael, I understand you have a tendency to use homosexual slurs and taunts towards posters whose opinions you don't agree with. But what the hell is with your white boy/prison bitch obsession with Obama?

Obama is President, be happy. But also recognize that with power goes criticism.

You react to everything Ann writes about Obama like a girl who is upset that her mom doesn't like her boyfriend.

Stop acting like a girly man.

Henry Buck said...

Does T. Marshall really cast a long shadow as a Supreme Court Justice? In my view he was an accomplished lawyer, but barely mediocre as a justice.

traditionalguy said...

This is the art of semantics being practiced in public by young pretty faces blabbering on as if there is no shame in conning people, only the sweet smell of victory in the morning. The 3 shells and 1 pea guessing game is more honest. And the news media is totally sold out to agree with the Party Line. We need some light shinning into this dark place quickly.

chickenlittle said...

Oops, that should be Laurence Henry Tribe.

@Ripper: LOL

garage mahal said...

Why is it that Obama is seen as having centrist, pragmatic inclinations and McCain was not?

Probably because he picked a centrist for VP unlike the crazy McCain unleashed, and constantly talked about surrounding himself with differing opinions. Does anyone think McCain or any Republican would have picked 3 Democrats for their Cabinet? Or when is the last time you heard a Republican talking about centrists or moderates for anything? A Democrat has to spit on a hippie for street cred with the Village Elders. With Republicans the crazier the better.

Original Mike said...

liberal = moderate, conservative = extreme

It's a very old game.

Simon said...

As I've said many times, I'm very fond of Lithwick, and I think she's a very enjoyable, vivid writer who's found a niche that works for her style, and who paints the Supreme Court in full technicolor. Sometimes, alas, the analysis lets down the prose.

Cedarford said...

[Liberals tend to grouse] that there is no left-wing counterpart for Justice Antonin Scalia.... [The complain that the] court's liberals are just not very persuasive.... [that they] lack a revelatory constitutional vision.... [and that they lack fervor].....

One would say Ruth Bader Ginsberg is a left-wing counterpart, but Ginsberg is someone that actually has intellectual integrity as a jurist and follows the law closely according to her philosophy. At times she will side with the conservatives and against Souter and the ditsy Sandra Day O'Connor who had no intellectual integrity and thought herself a legislator accountable to no one to "vote" on opinions.
Which is why Scalia has fondness and respect for Ginsberg and had almost none for O'Connor - unless you count Scalia in dissent fondly eviscerating Sandy on her many opaque decisions.

But Souter seems to fit. You know which way he will vote by averaging out the position sheets of the ACLU, American Communist Party, BBC's stand on American issues, and Moveon.org. The only drawback is Souter is quieter than other liberal lions and does his damages to American society with an aura of bureaucratic blandness.

Anthony said...

This is the most extreme leftist in the worst way, and some people actually consider him a moderate and centrist?

I don't get this either. Talk is cheap. He's a liberal. He makes a big show of "listening" to the other side, but then does the liberal thing he always intended on doing.

A former reporter who joined the O Team was even quoted as saying he didn't think his new position was partisan because "Obama has promised to do things in a bipartisan fashion".

Have so many people just simply lost their minds?

Freder Frederson said...

One would say Ruth Bader Ginsberg is a left-wing counterpart, but Ginsberg is someone that actually has intellectual integrity as a jurist and follows the law closely according to her philosophy.

Hey Cedarford, you do realize that Ginsberg is a Jew, don't you?

Fake Barack said...

If am the center of the universe, then my views are thusly centrist. People are judged not on traditional axis of financial or social extremes, but rather on the proximity to my perfect policies.

Didn't you get the memo?

http://fake-barack.blogspot.com

Armed Liberal said...

Ann - did you note the title of her piece (I did and was going to blog it):

"I Need a Hero: Seeking a bomb-throwing, passionate, visionary, liberal Scalia for a seat on the Supreme Court."

Palladian said...

"Hey Cedarford, you do realize that Ginsberg is a Jew, don't you?"

You know, as odious as Cedarford is, he's occasionally capable of being even-handed. You, on the other hand, are so doctrinaire as to make Cedarford seem generally reasonable. Congratulations on that amazing accomplishment.

John said...

"But Souter seems to fit. You know which way he will vote by averaging out the position sheets of the ACLU, American Communist Party, BBC's stand on American issues, and Moveon.org. The only drawback is Souter is quieter than other liberal lions and does his damages to American society with an aura of bureaucratic blandness."

And to think that Souter got the nod over Ted Olson because John Sununo assured Bush I that Souter was a principled conservative. It is hard to fathom what a lying sack of crap Sununo and or Souter must have been to have convinced Bush of that.

Palladian said...

"I Need a Hero: Seeking a bomb-throwing, passionate, visionary, liberal Scalia for a seat on the Supreme Court."

Any lover of liberty should be absolutely terrified of any political figures who are thought "passionate" and "visionary", nevermind "bomb-throwing". Great choice of words, Lithchick!

Anonymous Blogger said...

The current crop of liberals is not very liberal, comparatively.

From Stevens to Breyer, all are, historically, moderates. They are all to the right of Marshall and Brennan. Those are the liberal lions who are the touchstone.

A present-day equivalent might be Pam Karlan, who is an election lawyer and a fervid abortion rights booster. Karlan does not look like a probable pick.

Sotomayor, who is Hispanic and Breyeresque, looks more likely. All the potential Obama picks that Tom Goldstein has speculated about on Scotusblog are Breyeresque. None are shrieking liberals like Marshall or Brennan, and none would pen "penumbra" style opinions.

Frankly, the only judge I can think of like that is Stephen Reinhardt. He's the most overturned appellate judge from the most overturned Circuit -- but he's a white male, lacking in racial, ethnic, religious, or gender diversity. Since he won't be selected in all likelihood there is no liberal lion to speak of. Lithwick in this respect is empirically correct.

bearbee said...

How about Henry Brockholst Livingston

Obama will try for Lawrence Henry Tribe

I heard also Cass Sunstein who is with the Obama administration.

Nathan Hall said...

I find few things as futile as this petty bickering over who gets to define the center of the political spectrum. Conservative, moderate, liberal...these are all largely in the eye of the beholder. Articles peppered with pejoratives like "extreme" and complements like "centrist" tend toward the semantic content children fighting over a favorite toy. "The center is mine!" "No, I had it first!"

Why is the center so great, anyway? Some of the towering figures of history were extremists of one sort or another in their day. Labeling somebody as extreme is no way of proving them wrong, and I dearly wish this meme would begone forever.

Cabbage said...

None are shrieking liberals like Marshall or Brennan, and none would pen "penumbra" style opinions.

In many ways, that is because the 60s/70s era liberalism is dead. No one expects a return to Goldberg-style activism.

traditionalguy said...

The comment about Obama's MO are apt. The accepted method of operation in the educated african-american social groups is for a nicely spoken "Excuse me" to accompany any grab for your territory. This method has the wisdom of making any defensive reaction to their aggression appear as if a white person is attacking a nice Black person. It is time now to ignore those gambits, and say back "I'll excuse you when you stop doing it". I declare a post-racial America has arrived. Somebody alert the News Media.

Richard Fagin said...

Yeah, I realize Ginsberg is a Jew. She and the other 75% of my religious brethren are what keep me out of the synagogue: their rank hatred of the best friend Israel ever had in the White House is sufficent cause all by itself to keep a safe distance; the well to do of the bunch from New York (among other places) are the very embodiment of the term "limousine liberal"; their nanny-state opinions about how everyone else should live find their clearest expression in the person of Mayor Bloomberg. Of COURSE Dahlia Lithwick is enthralled by this type of judge. After all, the rubes can't be allowed to make their own decisions, because the results will be UNFAIR!!!

Damn, I need to go to Wal Mart to buy some guns before Dahlia's new favorite justices vote to overturn Heller v. DC. This Jew isn't going quietly when the sharia police come knocking in 10 years or so.

T Mack said...

Jack wrote, "I was surprised last year when Mickey Kaus, who is my favorite centrist,"

And who is your least favorite centrist and your mediocre centrist?
Christ you need to get out more Jack. Get a life.

Simon said...

John said...
"to think that Souter got the nod over Ted Olson because John Sununo assured Bush I that Souter was a principled conservative."

As I had understood it, Souter was the pick after Michael Luttig decided that Kenneth Starr wouldn't be a good pick. I don't know of any evidence suggesting that Olson was in the mix. I'm surprised at the suggestion Ginsburg rates higher than Souter, who strikes me as far more thoughtful - and a far better writer - than her. He would be the last member of the court's liberal bloc I'd like to see go.

Eli Blake said...

Well, it's not just her opinion. Read the Liptak article you linked to to see what she was responding to. In it, Justice Stevens, now considered one of the most liberal justices on the court, argues that he hasn't changed his view of things since he was nominated by Gerald Ford, but rather that the court has consistently moved to the right.

Every judge who’s been appointed to the court since Lewis Powell” in 1971 “has been more conservative than his or her predecessor,” Justice Stevens said in a 2007 interview. He added that Justice Ruth Bader Ginsburg might have been the sole exception but included himself as one of those 11 ratchets to the right

(for the record, Stevens was appointed to replace William O. Douglas.)

former law student said...

liberal = moderate, conservative = extreme.

Dahlia Lithwick considers herself to be a moderate, and wants a justice who mirrors her beliefs. This is only to be expected. Just as 90% of Americans consider themselves to be middle class, 90% of Americans consider themselves to be middle of the road politically. (There are "unabashed liberals" and "proud conservatives" of course.)

This is the most extreme leftist in the worst way, and some people actually consider him a moderate and centrist?

Yes, non-hysterical people. Until and unless I get the email from Plouffe to go ahead and seize the means of production, I see no evidence that Obama is the most extreme leftist in the worst way.

As one example of his moderateness: Obama listened to the House Republicans, and incorporated their input into his stimulus bill, only to have none of them vote for it.

Republicans: immoderate
Obama: moderate

Lithwick is a complete whackjob extremist. So it makes perfect sense that she would think anyone who doesn't agree with her completely and totally is a dangerous extremist. Psychologists call it projection.

Yes, that paragraph is an excellent example of projection, indeed.

As a legal scholar she knows as much as anyone that the Presidential appointee to the Supreme Court doesn't become a Justice without the consent of the Senate.

At the time she wrote that, the margin of victory for Senate Democrats could hardly have been predicted.

Skyler said...

It is hard to fathom what a lying sack of crap Sununo and or Souter must have been to have convinced Bush of that.

You left out the fact that the Bushes were both very much in favor of expanding government, the second Bush even more than the first. The most obvious evidence is the incomprehensibly unamerican nationalization of the banking and auto industries. I don't think either needed to be lied to to do anything that would favor increased federal power over states and individuals.

fcai said...

Dahlia said "liberal slot", heh heh...

Simon said...

Anonymous Blogger said...
"Frankly, the only judge I can think of like that is Stephen Reinhardt."

Ah, but will Obama limit the pool to judges? I am not sure that he can or will, and it bears noting that before Clinton picked two appellate judges, he tried to give the seats to politicians (Cuomo and George Mitchell refused the offer). The idea of Cass Sunstein being appointed is an unpleasant thought - it can only be thought some cosmic joke that he holds the title Felix Frankfurter Professor of Law (I suspect Justice Frankfurter would spin in his grave at the thought). Karlan has many good qualities, as does Kathleen Sullivan, but both of them are wrong about the central legal question of our age, and so are unacceptable to me.

Dave said...

"Stop acting like a girly man."

Ripper, how do you know it's an act?

The main reason for an argument over center versus extreme SCOTUS appointments is that mostly only extreme Right nominations are called out of bounds.

Marshall was a mediocre justice at best, and it would seem in his later years most of his opinions were all but entirely ghosted by his clerks.

Tribe is too old to be a likely nominee.

Anonymous Blogger said...

Ah, but will Obama limit the pool to judges?

I mentioned Karlan, who is not a judge.

former law student said...

Marshall was a mediocre justice at best, and it would seem in his later years most of his opinions were all but entirely ghosted by his clerks.

The same was said of Sandra Day O'Connor.

Simon said...

Eli Blake said...
"Justice Stevens, now considered one of the most liberal justices on the court, argues that he hasn't changed his view of things since he was nominated by Gerald Ford, but rather that the court has consistently moved to the right."

Yes, that's what he claims, but no serious court watcher takes the claim seriously. The court has moved marginally to the right, but Stevens has moved left. Not so far to the left as Harry Blackmun, but certainly more to the left than Byron White moved to the right.

People say that the court has moved right as if that's some revelation, but as I read the history - and Althouse can correct me since she was there - when Althouse was in law school, Potter Stewart was considered a conservative. Potter Stewart! What in the world they must have made of Rehnquist is beyond me. When Potter Stewart is part of the court's relatively conservative wing, you know the court is pretty far to the left and is ripe to swing in the right direction.

Dave said...

"As one example of his moderateness: Obama listened to the House Republicans, and incorporated their input into his stimulus bill, only to have none of them vote for it."

Beg, pardon, but I need more than your word for that. In fact, I believe it is totally, factually incorrect, and I accuse you, absent a link to reliable sourcing, of Making Shit Up.

Show me even *one* House Republican 'input' Obama incorporated into the bill passed by the House.

I'm not holding my breath.

former law student said...

The idea of Cass Sunstein being appointed is an unpleasant thought

I'm hoping that Obama might go where no Republican has dared, and appoint Kozinski.

paul a'barge said...

Before you bash Althouse over her rather forgiving reviews of Lithwick, bear in mind that they at least resemble friends.

Joe said...

Obama listened to the House Republicans, and incorporated their input into his stimulus bill

Utter nonsense. The house bill wasn't Obama's, it was produced by the House democratic leadership with little, if any, input from anyone else, especially Republicans, but also Obama and democratic senators.

halojones-fan said...

"This is the stock argument that you hear again and again from people who want the Supreme Court to move to the left: liberal = moderate, conservative = extreme."

And, of course, liberals are fond of telling us that "reality has a left-wing bias".

Crimso said...

"I Need a Hero: Seeking a bomb-throwing, passionate, visionary, liberal Scalia for a seat on the Supreme Court."

Let's hope Ayers has paid his taxes...

Jeremy said...

garge said, "Probably because he picked a centrist for VP"

Just because neither Rs nor Ds particularly like Biden doesn't mean he's a centrist.

"Does anyone think McCain or any Republican would have picked 3 Democrats for their Cabinet?"

Seriously? There was talk of him picking up Traitor Joe for his VP spot. McCain would have handed over the entire cabinet, carte blanche, to the DNC if they promised to call him in the morning.

Roger J. said...

grage: you got your ribs--I am still waiting for my cheese--or are you just another liberal who promises and doesnt deliver?
at this point not important--you have been umasked

Dave said...

"The same was said of Sandra Day O'Connor."

I don't deny that. However, I don't recall Lithwick calling O'Connor a "Lion" of anything.

For purely crappy opinion writing, I nominate Blackmun, and I'm pretty sure he wrote it all in toto.

rocketeer67 said...

As one example of his moderateness: Obama listened to the House Republicans, and incorporated their input into his stimulus bill

FLS, Joe characterizes your above statement as "[u]tter nonesense." He's only partially right.

It's also a bald-faced lie.

Eli Blake said...

And I'd point out that qualitatively Stevens appears to be right. Seven of the nine justices were appointed by Republican Presidents, and in most cases they replaced justices appointed by Democrats. Justices Breyer and Ginsburg were Clinton appointees but Breyer replaced William Brennan, and as a Clinton appointee was primarily chosen (with some input from Orrin Hatch) as someone who might avoid a bloody confirmation battle. So only Ginsburg (who was appointed to replace surprisingly conservative Kennedy appointee Byron White) was a move to the left.

This is the consequence of voting for Republican Presidents so often between 1968 and 1992-- remember that Jimmy Carter had no Supreme Court vacancies in his four year term (though Reagan had five, including four in his first term-- so the 1980 election was particularly pivotal in terms of the Supreme Court.)

Eli Blake said...

Or let's look at the raw numbers:

The Segal-Cover score (computed at the time the justices were nominated, based on past decisions and writings as covered by news organizations) for all justices nominated since 1937 is here. The ideology score is in the right hand column (1.000 is pure liberal and .000 is pure conservative) and overall you can see a decline over the decades. Of current justices only Ginsburg was clearly considered a liberal when she was nominated.

former law student said...

From Time Magazine: When House Republicans objected to two provisions in the bill — one providing Medicaid family-planning aid to states, and another funding restoration of the National Mall — Obama quickly asked to have the offending items removed.

Could I have been misled by the MSM?

gekkobear said...

"As one example of his moderateness: Obama listened to the House Republicans, and incorporated their input into his stimulus bill, only to have none of them vote for it."

Ok, former law student; when the President writes a bill to put before Congress; something outside his Constitutional jurisdiction... how of course takes input from only House members. Or is Obama a Representative in the House?

He came up with a 600 page bill as soon as he took office, and had serious input from all sides in under a week? Unbelievable... no seriously, I don't believe you.

And the House Republicans who state that Pelosi shut them out of the process? Must be lying, Obama would never do that... and Obama runs the House of Representatives like a tight ship, seeing as he's in charge of the Legislative Branch of Congress... somehow.

Can I guess why you're nom de plume is "former law student"?

The Constitution will help clarify what Obama's job does, what the branches of Government are, who can write a spending bill, and many other useful pieces of information.

I'd have expected you'd study it some in law school, but I guess not. that does explain how some judges get to their conclusions. If they've never looked at the Constitution maybe they just don't know what it says.

Freder Frederson said...

Can I guess why you're nom de plume is "former law student"?

When your insulting people, its probably a good idea to know the difference between "you're" and "your".

(And yes--both missing apostrophes in the above sentence were deliberate)

Joe said...

Could I have been misled by the MSM?

You even have to ask?

Gahrie said...

"And I'd point out that qualitatively Stevens appears to be right. Seven of the nine justices were appointed by Republican Presidents, and in most cases they replaced justices appointed by Democrats."

Just because they were appointed by Republicans, doesn't make them conservative. In fact, one long standing lamentation of conservatives is the tendency of Republican presidents to nominate justices that turn out to be liberal. Justice Stevens himself was nominated by a Republican. Justice Kennedy, Justice Souter and former Justice O' Connor were nominated by Republicans. Liberal heroes Justice Blackmun and Justice Burger were appointed by a Republican.

Can you name a single Justice appointed by a Democrat who became a conservative?

Of current justices only Ginsburg was clearly considered a liberal when she was nominated.


The issue isn't how they were thought of when they were appointed, it is how they behaved after they were appointed.

Gahrie said...

Here are some comments I made about the confirmation process.

http://gahrie.blogspot.com/2007/07/us-supreme-court-today.html

chickenlittle said...

RogerJ. wrote: grage: you got your ribs--I am still waiting for my cheese--or are you just another liberal who promises and doesnt deliver?

Wait, I remember you guys betting--it was during the election--you mean garage lost and never paid up?

former law student said...

Ok, former law student; when the President writes a bill to put before Congress;

So, there were no "Bush tax cuts;" we should all refer to the Rep. William Thomas [R-CA] tax cuts?

You should probably know that "Bush tax cuts" gets 5,820,000 hits, while "William Thomas tax cuts" gets zero.

He came up with a 600 page bill as soon as he took office

Realize that the bill was double spaced, with two inch margins all the way around, except the top, which is only one inch. Definitely the bill's authors were padding it to make the page count.

Ralph said...

A thousand years of English history, and millions of Johns, but only one has mounted the throne.

Simon said...

Eli Blake said...
"Breyer replaced William Brennan

He replaced Harry Blackmun, and it's not clear to me that Breyer isn't more liberal than was Blackmun. Souter is more conservative than Bill Brennan was, but that's not saying much.

"Reagan had five [vacancies], including four in his first term"

He had four, and only one of those vacancies was in his first term (Stewart's retirement); Burger and Powell retired in Reagan's second term, and Rehnquist's move to the center seat created a vacancy. I don't know where you get five, or the notion that four of them were in his first term.

former law student said...
"I'm hoping that Obama might go where no Republican has dared, and appoint Kozinski."

If the ideological balance of the Senate were reversed, I could see Obama appointing Posner or Kozinski, but as it is, I don't see him doing so. Personally, I hope he nominates Althouse, although I doubt he will and I know she wouldn't want it. It'd be nice to get someone who's serious about and interested in federalism on the court again.

Oxbay said...

Brennan was a great Congressman which makes him a horrible Supreme Court justice.

When Marshall died all the liberal stalwarts talked about what a great lawyer he was. They knew his tenure on the Court was a waste of time.

Michael said...

JEERIPPER - "...what the hell is with your white boy/prison bitch obsession with Obama?"

Let me guess: You're a right wing racist piece of shit living in a trailer somewhere in Kentucky?

Pretty close?

chickenlittle said...

A thousand years of English history, and millions of Johns, but only one has mounted the throne.

He have been the one with the chair fetish.

Michael said...

Bitch and whine, bitch and whine, bitch and whine.

Nothing new.

Just more bitching and whining, bitching and whining, bitching and whining.

*And, just as I stated at the start of this thread, 99% of the postings are nothing more than right wing drivel complaining about anything Obama.

Henry said...

*And, just as I stated at the start of this thread, 99% of the postings are nothing more than right wing drivel complaining about anything Obama.

Michael, you repeat yourself too much for that ever to be true.

Ban Kid Nation said...

Lithwick is, and always has been, a liberal hack.

Simon said...

Eli Blake said...
"Or let's look at the raw numbers: The Segal-Cover score (computed at the time the justices were nominated, based on past decisions and writings as covered by news organizations) for all justices nominated since 1937...."

I don't know how you can take those numbers seriously when they give Warren Burger and Harry Blackmun the same score, and when - as you concede - they cover only an evaluation made at the instant the justice was nominated. Anthony Kennedy may well have been more conservative than Lewis Powell in 1988, but it's far from clear that he is still.

Freder Frederson said...

Personally, I hope he nominates Althouse, although I doubt he will and I know she wouldn't want it. It'd be nice to get someone who's serious about and interested in federalism on the court again.

You really are delusional aren't you?

Freder Frederson said...

I could see Obama appointing Posner

That's almost as ridiculous as the notion of appointing Althouse.

Simon said...

Put another way, even if they're correct, which I doubt, they're not very relevant.

Michael said...

Florida Student Asks Scalia a Question -- and Gets Scolded

Where others fear to tread, a 20-year-old college student from Tequesta, Fla.,boldly stepped forward Tuesday to ask Supreme Court Justice Antonin Scalia a question he did not like during a public appearance in West Palm Beach. "That's a nasty, impolite question," said Scalia, himself an expert on tough questioning, and he at first refused to answer it.

This morning we tracked down student Sarah Jeck, the Florida Atlantic University honors college junior who incurred Scalia's wrath, and she seemed a little stunned, but not cowed, by his reaction. "He can dish it out, but he can't take it, I guess," she says. "I'm generally a very polite person. I'm really surprised the way it turned out. It was not a preposterous question."

So what did Sarah Jeck ask that caused the volatile justice to erupt? According to her own notes and this account in today's Sun-Sentinel, Jeck asked whether the rationale for Scalia's well-known opposition to cameras in the Supreme Court was "vitiated" by the facts that the Court allows public visitors to view arguments and releases full argument transcripts to the public, and that justices go out on book tours.

It's that last part that probably grated, because Scalia could, at that precise moment, have been said to be on a book tour. He was speaking before the Palm Beach County Forum Club and Bar Association, while his book -- Making Your Case: The Art of Persuading Judges, co-authored by Bryan Garner -- was for sale at a table outside the hall.

Jeck, a political science major, is taking a judicial process class and is looking at the issue of cameras in the courts as her thesis topic. So when she learned Scalia was coming to town, it seemed like a reasonable question to her and her prof Martin Sweet. By tradition, the club invites local university students to forum events and lets them ask questions. "We knew it was a little jab, but his response was unanticipated," she says.

After Scalia made his comment to Jeck, he took several written questions and then circled back to Jeck's query, according to this story in the Palm Beach Post. Scalia said he originally supported the idea of camera access in the courts, but came to oppose it because the inevitable "30-second takeouts" would not give a true picture of what is going on. "Why should I be a party to the miseducation of the American people?" According to Jeck, Scalia made no reference to his book tour as a possible contradiction to his views on public access to the Court.

We asked Jeck two more questions in our brief phone interview this morning. First, is she planning to go to law school? "Yes," she said without hesitation. And second, did she buy Scalia's book? Just as definitively, she said, "I'm a college student. I don't have $30."

Footnote: Sweet, Jeck's professor and pre-law advisor, told us today he is "incredibly proud" of her questioning and demeanor. "It was certainly a pointed question, but not designed to be impolite or nasty," said Sweet, a Supreme Court scholar in his own right. "The point of learning is not to stroke somebody's ego."

Michael said...

Henry - Sorry...95%.

Duh.

Becky C. said...

I've always hoped that the Ringmaster of the Ninth Circuit, Judge Kozinski, would get it. But probably too libertarian for both Bush and Obama.

And I suppose the dirty pictures thing kills that idea anyway.

I am really tired of the liberal/conservative dichotomy. What it really means is politically liberal or politcally conservative--and allowing the expansion or retraction of federal power whenever necessary to achieve the particular agenda.

I would like someone who is truly judicially conservative for a change (actually the much maligned Clarence Thomas comes closest to that).

I'd like to see results like : yeah there is no rational basis (just pretend reasons) supporting a compelling state interest in treating gays differently than breeders, constitution has nothing to say about abortion--and it is real clear you got to keep your mitts off the folks' guns.

I once heard Kocinzki say that he knew he had made the right decision when it went against his political or personal beliefs--and if it was in harmony he always looked at it twice.

~Becky

Henry said...

Former Law Student -- Obama listened to the House Republicans, and incorporated their input into his stimulus bill, only to have none of them vote for it.

Obama has the demeanor of a moderate. He really seems capable of depersonalizing partisan issues and I think he's sincere in hoping that he can do things differently.

That doesn't change the actual facts -- in the red tide that is this stimulus package, netting a few dead fish doesn't make it stink less.

Simon said...

Becky C. said...
"I once heard Kozinski say that he knew he had made the right decision when it went against his political or personal beliefs--and if it was in harmony he always looked at it twice."

That second part is a good rule of thumb (the first is a bit more dubious). I wish more people would use that for evaluating new information that comes over the bows in any setting.

TitusisEatingFish said...

Would Althouse not be eligible because she is a notorious breast blogger?

How about some fabulousness on the Supreme Court?

TitusisEatingFish said...

A nice pair of tits that protrude from the black robe would be nice. Also, not wearing anything other than the robe would be interesting.

TitusisEatingFish said...

I would like the next supreme court justice to also be slutty.

Instead of parading their adorable family up there with them I would like to see a cast of characters who can attest to doing the nominee in every hole, bush and every alley. Think of the drama and excitement that would make.

Sluts don't get any respect. No slut parade, no nothing.

TitusisEatingFish said...

How about Rudy? He is kind of slutty. He is also very "cosmopolitan".

Eli Blake said...

Gahrie:

Can you name a single Justice appointed by a Democrat who became a conservative?

Byron White.

Simon:

You're right, I tend to confuse Reagan with Nixon (a common mistake by us liberals.) It was Nixon who got to remake the court.

As for federalism on the court, the court still has a distict federalist lean on a lot of issues (for example, two years ago they decided that the feds can't prevent Oregon from allowing physician-assisted euthanasia when requested by the terminally ill, and that led directly to Washington voters passing the same law last year. States that don't want it, don't have to pass such a law. Here in Arizona if I am terminally ill, the only way I can get euthanized is that I'd have to murder somebody first.

TitusisEatingFish said...

John Roberts seems a little light in his loafers. I wouldn't be surprised if there is a rest area, bathroom, or park in his past. We gays can smell that shit a mile away.

Eli Blake said...

Titus:

Your comment puzzles me.

You say you are gay. Let's suppose you are right and somehow sense something about Roberts that is not apparent to others.

Then let me ask you this:

1. It's a well established fact that we don't only elect people to office who are virgins (or who were virgins when they got married), so we accept that people who hold office probably had girlfriends (or boyfriends) other than who they are married to now.

2. I assume that you (like other gay people I know) feel that your sex life is no more anyone's business than anyone else's sex life, and in fact if a public person is openly gay, applaud the fact.

So therefore, why are you implying it would matter if he were gay? I personally don't believe that he is (since all the evidence is otherwise) but if it were, why would you suggest that it should be an issue? If a male politician turned out to once have had sex with a woman he met in the park, would it be an issue (assuming that it wasn't otherwise an issue, such as infidelity in a marriage)? Of course not. So why would it be an issue if the woman is a man? If you're gay you should certainly answer that should make no difference (and I'd agree with you about that.)

Henry Buck said...

Eli -

That's the funniest post I've seen here in a while. You can't be serious responding to Titus that way, can you. Also, your last line, stating how someone must think, based upon his sexual orientation, is precious.

Jeremy said...

"That's a nasty, impolite question," said Scalia

Hey now, hey now, watch the language, buddy! Just cool your jets. Enough with the "erruption." No need to unleash the "wrath." Simmer down now. Simmer. Down. Now. Simmer down now.

Ann Althouse said...

TitusisEatingFish said..."John Roberts seems a little light in his loafers. I wouldn't be surprised if there is a rest area, bathroom, or park in his past. We gays can smell that shit a mile away."

Why don't you know that I was notorious for raising that question — more precisely the question of the NYT portraying him as gay — back when he was nominated.

Titus, please keep track of the full dimension of my fabulousness.

Ann Althouse said...

Armed Liberal said..."Ann - did you note the title of her piece (I did and was going to blog it)..."

Ha ha. Yeah. You're supposed to read the article and think that's what those other liberals want, and Dahlia ends up somewhere else.

Simon said...

Eli Blake said...
"I tend to confuse Reagan with Nixon.... It was Nixon who got to remake the court."

Nixon got the opportunity to remake the court, but he made like titus and blew it. The only good appointment he made was Rehnquist - Burger was, by all accounts, a vacillating intellectual nonentity and an incompetent leader, Powell was a moderate Democrat, and, well, then there was Blackmun. "Poor Harry!"

"As for federalism on the court, the court still has a distict federalist lean on a lot of issues"

Rehnquist and O'Connor were the court's mainstays on federalism, and they have been replaced by two justices who seem far less interested (which isn't a surprise given their backgrounds). Althouse has pointed out before, and I think the record bears this out, that Scalia doesn't all that interested in federalism, and to the extent he is, has evinced a broader view of national power than the two just mentioned. Moreover, Prof. Hills has argued, and I think he's right, that the central battleground of the federalism fight on the Roberts court so far has been preemption; in those cases, we find the conservatives supporting a broad conception of preemption, and the liberals - talk about doing the right thing for the wrong reason! - defending a presumption against preemption. That's consistent with federalism in a purely allocative sense, but for those of us who want to preserve a relatively robust degree of state authority, and think the constitution's presupposition of it ought to be defended, it's a bad result. With this in mind, I think that federalism has rather taken a step back with the Bush-era retirements. We seem, if anything, further from overruling Garcia than we were eight years ago.

garage mahal said...

Wait, I remember you guys betting--it was during the election--you mean garage lost and never paid up?

Nope, that's not how that went down. I won, and Roger paid up. I'll email Roger offline to ask why he's being a complete dick.

TitusisEatingFish said...

Althouse, I didn't realize you posted something about Roberts way back when.

Eli Blake you are funny.

Ann Althouse said...

Titus, read this post and this one.

Ken said...

Ms Lithwick would probably have a hard time calling Leon Trotsky an extremist. She seems to think that "moderate" means what she believes. And she believes pretty much as does Ted Kennedy.

Hucbald said...

How about, Lawyer= Conflict of Interest/Lawyer= Conflict of Interest? Closer to the truth, certainly, but lawyers wouldn't know anything about the truth... would they?

I'd trust a crack whore before I'd trust a lawyer.

Cedarford said...

Titus, I'm just surprised your "gay radar" was firing off on Roberts...without you mentioning Souter.

Ralph said...

Souter isn't good looking or rich.

Host with the Most said...

anyone think McCain or any Republican would have picked 3 Democrats for their Cabinet? Or when is the last time you heard a Republican talking about centrists or moderates for anything?

C'mon! That wins for most ridiculous statement so far this year!

We're talking McCain. Please!

If you truly beleive that statement, garage, then you have perfectly proved the point of Ann's post here about the liberal out-of-touch with reality Dahlia Lithwick.

Ann Althouse said...

@Host Well, Reagan appointed O'Connor and Kennedy and Bush I appointed Souter. Ford appointed Stevens. Seems to me Republican Presidents appointing moderates is a grand tradition.

Steven said...

Dahlia Lithwick has openly said that she views the purpose of judges as providing justice, as opposed to applying the existing law. She also views justice and liberalism as significantly coterminous. Whit this in mind, it is easy to put justices into three categories:

1) Conservative Extremists: Justices who try to rule in accordance with the meaning of black letter law (primarily) and precedent (secondarily), with no concern whatsoever for liberal principles.

2) Compromising Moderates: Justices who try to serve the liberal vision of justice with their rulings without too obviously reaching beyond the black letter law and precedent.

3) Principled Liberals: Someone who enacts the liberal vision of justice as constitutional law without a care as to what either written law or precedent say, then hopes respect for stare decis will allow the Compromising Moderates, and force the Conservative Extremists, to leave said enactments of justice intact.

Lithwick wants more of the last group, since the second group is unlikely to advance "justice" anywhere near as quickly.

Host with the Most said...

Ann, just reading this now.

I hope that you realize my point was in agreement with yours. I was simply pointing out the idiocy of someone denying John McCain's bipartisanship, which was his campaign's whole raison d'etre.

In fact it was the main reason that you gave for NOT voting for McCain: that McCain was not conservative and partisan enough. McCain would likely be one of those "Republican Presidents appointing moderates" to the court, which is the OPPOSITE of what garage is claiming.

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