September 9, 2005

About that lawprof letter....

Iowa lawprof Tung Yin (who did not vote for Bush) is very critical of the lawprof letter that opposes the appointment of John Roberts:
From the perspective of the goal of advocacy, I also have a hard time seeing how asserting by fiat that President Bush should appoint someone whose views are consistent with those of persons that Kerry would have appointed is likely to persuade the undecideds that Roberts should be kept off the Court.


Beth said...

I agree with that logic, which of course is one among the many reasons I have never voted for Bush, and would not vote for anything but a socially moderate Republican. I have no illusion that we'll see one of those get the nomination anytime soom. I predict Guilliani will go long through the primaries.

Unknown said...


which logic do you agree with?

That Bush should appoint people Kerry would appoint?

Or that it's poor advocacy to argue that Bush should appoint people like Kerry would appoint because Bush's beliefs about the Constitution are BAD, BAD, BAD?

Beth said...

Did you read Tung Yin's comment? I agreed with his assertion. It's pretty clear. Presidents will want to appoint judges who support their positions. One can't argue very effectively that Bush should appoint someone that Kerry would have appointed.

Thus, one reason I did not vote for Bush then is that I didn't want him appointing SC justices. Pretty simple.

Unknown said...

I agree with Yin as well. However, your statement was subject to erroneous interpretation by yours truly, so I sought clarification.

Peter Hoh said...

Maybe the law profs should circulate a letter to the DNC urging them to come up with a better process for picking the nominee.

Mark Daniels said...

Whether one voted for Bush or not, I think people should remember something about our system of government: Elections mean something.

Had John Kerry been elected last year, I would have fully expected him to have nominated persons to the Supreme Court whose views were broadly consistent with his own. That would have been both his right as President and his obligation to those who voted for him.

Among the reasons we have elections is so that voters can decide into whose hands to repose responsibility for nominating judges (the President) and confirming or rejecting those nominees (the Senate).

Once a president is elected, nobody should be surprised when she or he nominates someone whose basic philosophy is the same as the President's. Nor should anybody suggest that presidents have some obligation to nominate to the court persons whose views differ from their own. That's an absurdly stupid notion.

As is true of several other public discussions these days, people seem to have a woefully inadequate understanding of the Constitution. If the letter cited by Tung Yin is any indication, it appears that the misinformed includes some law professors.

Again: Elections mean something. If the opponents of John Roberts want to get people they find more philosophically sympathetic on the courts, they need to win elections.

Beth said...

We also elect representatives from our states and districts who have a role in the confirmation process as well. I don't see any support for the idea that Congress has to act as a rubber stamp for the president.

Mark Daniels said...

You're absolutely right, which is why I pointed out the parts played in the process by both the President and the Senate.


Eric said...

Perhaps though elections shouldn't mean anything. Isn't the Court supposed to be insulated from the political process as much as possible? What you're essentially saying is that the Supreme Court is nearly elective office, this I find troubling.

Simon said...

I agree with most of the commenters, who've said that elections have consequences. Show me a letter from a hundred liberal law professors from the Ginsburg nomination declaring concern for the "ideological balance" of the court. Tell me with a straight face that these law professors would have written to a President Kerry urging him to appoint a conservative jurist to succeed Rehnquist.

What does it take to change the direction of the court? Does it take winning the White House? Check. Does it take winning a majority in the Senate? Check. Does it take a sustained run of election victories to demonstrate longitudinal support? Check, draw, check, check, check, check. Where's the mate? What has to happen?

One thing I'd add, though. What I have found to be most strange about the Roberts nomination is the certainty and confidence with which groups such as NARAL and the ACS have declared that Justice Roberts will vote against Roe and Griswold. I see very little in his record that gives me hope that Roberts believes that text trumps precedent, and even less to make me think that he is (or could become) an originalist. Wherefore this strange certainty - or is it really entirely cynical, a shake-your-moneymaker exercise for enervated and marginalized pro-choice groups? Is this Teddy's re-election ploy?

For all the angry scolds of the left, it seems to me that those who should feel aggrieved about the Roberts nomination is not the left - who got far better than they could possibly have expected - but rather, those who voted for President Bush based on his promise to appoint Justices with views such as Scalia and Thomas. I'm concerned that I misunderstood Bush; Scalia and Thomas are originalists, textualists, and conservatives - at the best of times, in that order, but now it seems to me that what Bush meant was, "I will appoint conservative justices, period". For me, the constitution comes before party line, but the Bush administration and its supporters never saw a means they didn't like to an end they wanted, and it suddently seems depressingly clear that many of those who lionize Scalia know even less about his jurisprudence than those on the other side who demonize him.

One step forward, but, I fear, how many steps back?

josil said...

the elaborate arguments erected in opposition to roberts do not disguise their underlying ideology or political preferences. i find this affliction most common among liberals, sub-species, academics. i can't recall any complaints when liberal judges were nominated to replace conservative justices. somehow, democrats cannot understand that they are no longer in the majority electorally and never were culturally.