I love THESE sorts of articles. Hard to know when they’re anything more than “wishful” or “doomsday” thinking, but they’re still great fun. And I’m always a fan of seeing this in print:
Bush does not want to repeat the mistake of his father, who nominated the unknown David Souter, believing he was conservative only to see Souter quickly become one of the Court’s most reliable liberal votes.
Good.
Ginsburg LOST again.
The decision moved Justice Ruth Bader Ginsburg to read a dissent from the bench, a usually rare practice that she has now employed twice in the past six weeks to criticize the majority for opinions that she said undermine women’s rights.
Speaking for the three other dissenting justices, Ginsburg’s voice was as precise and emotionless as if she were reading a banking decision, but the words were stinging.
“In our view, the court does not comprehend, or is indifferent to, the insidious way in which women can be victims of pay discrimination,” she said.
Last month, Ginsburg rebuked the same five-justice majority for upholding the federal Partial Birth Abortion Ban Act and for language in the opinion that she said reflected “ancient notions about women’s place in the family and under the Constitution — ideas that have long since been discredited.”
Yesterday she said that “Title VII was meant to govern real-world employment practices, and that world is what the court today ignores.” She called for Congress to correct what she sees as the court’s mistake.
As a non-legal person, I have almost no idea what this is all about. But I’m fully prepared to take the Thomas/Scalia/Roberts/Alito side of an issue over the Ginsburg/Stevens/Breyer one pretty much every day of the week. I’m good at judging by apprearences that way. Fun.
I wonder if THIS is the sort of thing Stone was thinking about:
So where should we look, to get a glimpse of what a Justice Roberts would be like on the Court? I would suggest that part of answer lies in his Catholicism. Described as a “devout” Catholic, Roberts received a Catholic education before heading to the strongly secularist world of Harvard — in the 1960s, no less. When I see Roberts speak, ever so succinctly, or read his equally succinct writings, I see one of my students. In my 15 years at not only a Catholic university, but the Catholic University of America, many capable (and occasionally not so capable) students have come through my Constitutional Law classes. Many of my better students have been quiet, thoughtful, respectful, and very attentive to their obligations — but drawing them into critical argument can be another matter. Roberts’s record seems to reflect a Catholic discipline and comfort with hierarchical roles and authority; he has learned how to tame — in an amiable manner — his intellect and emotions for a larger cause or obligation, be it a president, a client, or the law itself.
It may be that such training is so embedded in Roberts’s character that he will be disinclined to engage in the larger dialogue necessary to responsible constitutional interpretation. But it seems at least as plausible that his Catholic humility and patience have helped him be content in his roles, and that he will understand and welcome the larger thinking required for excellence in the new role he has been called upon to perform. Given the strength of both his intellect and his religious faith, that seems particularly likely. And if this proves to be the case, and a more robust and forceful Roberts jurisprudence emerges, we will be glad that whispering in his ear, dampening his ego, will be that Catholic understanding of the frailty of man. Wedded to a forceful intellect not afraid to stand on principle, that constraint creates a fruitful, responsible balance, and surely the law and the Court could use that today.
Not sure exactly why that would scare someone, but I guess it might. For my part, I agree with Ralph Neas’ VIEW of the situation. (Wait. Did I just say that?)
Ralph Neas, president of People for the American Way, has been a fierce opponent of many of the Bush administration’s judicial nominees. “My problem with the right-wing block on the court is their view of the Constitution, not their religion,” Neas, a Roman Catholic, said in an interview.
Disagree with Thomas, Roberts, Scalia, Alito and Kennedy because you think they’re wrong in their interpretation of the Constitution, not because you think they’re brain-washed Catholics.
Geoffrey Stone TRIES to backtrack:
…I also acknowledge that the fact that all five Catholic Justices voted together in this case to make up the 5-to-4 majority might have nothing to do with their religion. These five Justices often vote together on matters having nothing to do with religion. Perhaps Carhart was just coincidence. Perhaps it was a reflection of their common approach to constitutional law that has nothing to do with their religious convictions. The point of my post was to pose the question and to invite people to think about it.
Whelan doesn’t let him GET AWAY with it, though.
Geoff Stone now tells us that his anti-Catholic tirade was intended merely to “pose the question” about what role the Catholic faith of the five justices in the majority played in their decision in the partial-birth abortion case. One problem with that claim is that Stone plainly was not posing the question. He was purporting to answer it, and his answer was (in ways that I have previously explained) ignorant and bigoted, though.
And Patterico ADDRESSES the question of whether or not Stone is misinterpreting the actual decision, completely seperate from the question of bigotry. (He thinks “yes,” just in case you were wondering. Actually, “Heck Yeah!” might be a better description.)
I’m talking about Geoffrey Stone, former law school dean and provost at the University of Chicago. (I’m not talking about Oliver Stone, though taking him to task would be great fun. I’ll have to keep that in mind as well.)
Shortly after the PBA decision, he posted THIS little gem.
What, then, explains this decision? Here is a painfully awkward observation: All five justices in the majority in Gonzales are Catholic. The four justices who are either Protestant or Jewish all voted in accord with settled precedent. It is mortifying to have to point this out. But it is too obvious, and too telling, to ignore. Ultimately, the five justices in the majority all fell back on a common argument to justify their position. There is, they say, a compelling moral reason for the result in Gonzales. Because the intact D & E seems to resemble infanticide it is “immoral” and may be prohibited even without a clear statutory exception to protect the health of the woman.
By making this judgment, these justices have failed to respect the fundamental difference between religious belief and morality. To be sure, this can be an elusive distinction, but in a society that values the separation of church and state, it is fundamental. The moral status of a fetus is a profoundly difficult and rationally unresolvable question. As the Supreme Court has recognized for more than thirty years, when the fundamental right of a woman “to determine her life’s course” is at stake, it is not for the state — or for the justices of the Supreme Court — to resolve that question, and it is certainly not appropriate for the state or the justices to resolve it on the basis of one’s personal religious faith.
Everyone jumped on him, which was very gratifying. Well, everyone not named Rosie O’Donnell. Ed Whelan STARTED, Jan Greenburg FOLLOWED, Hugh COMMENTED, Patterico CONTACTED the man himself, and Whelan FOUND OUT a bit about “the man himself” as well. (As a non-lawyer, I can’t quite get my head around most of this stuff. I find it more helpful to go the Register route, courtey of PRO ECCLESIA. Or the D’Souza ROUTE, courtesy of EYES OF FAITH.)
THIS article is anxious to point out that it was completely expected, and not much of a victory for us “conservatives.” But it was still Kennedy, and he’s the ultimate wild-card. (Interesting to note that he wrote the majority opinion. There’s no way that was not highly intentional on Roberts’ part. Good job.)
The Supreme Court upheld the nationwide ban on a controversial abortion procedure Wednesday, handing abortion opponents the long-awaited victory they expected from a more conservative bench.
…
Kennedy’s dissent in 2000 was so strong that few court watchers expected him to take a different view of the current case.
HERE are some excerpts. Thomas’ is the best:
I write separately to reiterate my view that the court’s abortion jurisprudence, including Casey and Roe v. Wade, has no basis in the Constitution.
SCOTUSBlog has a pretty complete SUMMARY, as does Ed WHELAN at Bench Memos. Richard GARNETT thinks it’s a “narrow” decision, but also an important one. (NRO’s EDITORIAL from a couple months ago beats the “judges are profoundly important” drum that Fr. Fox has been trying to pry away from me. So does THIS Shannen Coffin piece. And so does THIS post from SCOTUSBlog’s Marty Lederman. And THIS.)
Almost as interesting as the ruling itself is the “tea leaf efforts” being applied to Roberts and Alito. Aurel, at ConfirmThem, is a bit CONCERNED. Whelan, however, is NOT. And neither are most of Aurel’s commenters. Plus, I have my new favorite Alito descriptor - one that uses a word applied to todays’ decision by Lederman in reference to Casey: evisceration.
He doesn’t directly overrule. Through indirection he eviscerates.
I can’t wait.
That’s the topic of this PIECE from The Journal’s Kimberley Strassel.
All has been quiet on the judge-front, which is the way Senate Majority Leader Harry Reid and Judiciary Chairman Patrick Leahy like it. Busy running a war and ginning up Bush scandals, the Democrats would rather not give a demoralized Republican base something juicy to get het up about. That calm is about to give way for a critical few months, during which Democrats will be forced to tip their hand on their confirmation strategy, and the Bush administration will get a last shot at adding to its judicial legacy.
The key words here are “adding to.” Six years in, even the most critical conservative activists are concluding that President Bush has had an impressive judicial run. The base may be disappointed with other aspects of this president and his party, but there’s a rock-solid feeling the Texan has lived up to his campaign promises to change the judiciary with distinguished conservative jurists. “I could nitpick here or there, but Bush really has won this issue, and it will be a long-lasting part of his legacy,” says Curt Levey, president of the Committee for Justice, which advocates constitutionalist judicial nominees.
It’s not exactly a “rosy picture” piece, detailing the mistakes Bush and Co. have made, the significantly unhelpful “efforts” of many GOP congressmen, and the problems that confront the administration in the coming months. But it does seem to strongly support the claim that Bush “got judges right,” at the very least. (And despite Fr. Martin’s efforts to keep me from making it “all about the judges,” I can’t help myself.)
Course, there’s also this benefit:
Numbers and names aside, perhaps the president’s biggest judicial gift is on display right now, sitting square in the middle of the Republican presidential primary. Mitt Romney, John McCain, Rudy Giuliani–voters are demanding contenders state what sort of judges they would appoint, and don’t think the candidates aren’t weighing their answers carefully. Mr. Bush set a high bar for what the base expects from its leaders; that alone is a legacy.
(THIS seems relevent, as well. As a non-lawyer, I probably don’t really know what it’s talking about. But I think it’s a big deal.)
Lots of capital letters there, but the RESULT seems unpromising no matter how it is spelt.
Case in, case out (and with the luxury of lots of time), five justices on the Supreme Court will sign their names to anything, so long as it reaches the result they favor.
Red State’s alexham POSTS on the trend that’s becoming clearer and clearer here. (And Pro Ecclesia CHIPS IN as well.)
In case it wasn’t already apparent, Justice Kennedy has completely gone over to the dark side, as evinced by his voting with the majority in the “global warming” case (released today).
Still, I take some hope. Another serious conservative is needed to swing the court, it’s true. But as Roberts and Alito start to carve out their positions a bit, they seem strongly conservative. I sure hope that keeps up.
It’s a bit out-of-date now, but the last two Jan Crawford Greengurg Q&A posts are up at Confirm Them: HERE and HERE.
A couple of particularly interesting bits, from both interviews:
[In your book], you assert that Justice Alito is the Conservative’s equivalent of Justice Ginsburg. Can you please elaborate on that point?
Answer: Sure. Justice Alito—like Justice Ginsburg—was a known quantity. He’d been an advocate for political change on the Right, just as she was on the Left. He was an experienced judge with well-known views, just as she was before her nomination. He was clearly conservative, just as she was clearly liberal. He would be a solid vote for the president who nominated him, just as Ginsburg would for the president who nominated her. He would change the direction of the court, because he was more conservative than the justice he replaced. She would change the direction of the court, because she was more liberal than the justice she replaced. He was collegial and well-respected by his peers on the other side of the ideological aisle, just as Ginsburg was by her peers. George W. Bush didn’t nominate a cipher like his dad with David Souter. He didn’t nominate an unmoored “80 percenter” like President Reagan with Anthony Kennedy. Alito had a track record. And he proved that a Republican president could nominate a justice with clearly held, conservative views and get him confirmed—just as Bill Clinton had in nominating liberal Ruth Bader Ginsburg. Now of course, there’s one slight hole in my theory, so those of you who’ve figured it out, stop yelling at me. Yes, I know, Justice Ginsburg was confirmed 96-3. Justice Alito was confirmed 58-42. And I’ll let you guys speculate on why that vote count is the big difference between the nominations/confirmations of Ginsburg and Alito—and what it means for Bush if he gets another one.
…
That said, Gonzales recognized conservatives would revolt over his nomination, as did Karl Rove and Andy Card. But it’s hard to believe Rove and Card didn’t also see the same opposition to Harriet Miers. The Miers nomination was so closely held with just a small handful of advisers that Bush got no serious pushback–except from one key person, Alberto Gonzales. That’s the most fascinating thing about the Gonzales story. Gonzales alone—unlike Rove and Card and Miers, herself–recognized that conservatives also would reject Miers. Gonzales alone stuck his neck out and urged President Bush not to nominate her. Bush, of course, didn’t listen—he’d already made up his mind. Rove and Card had signed off, Miers was game, and Gonzales was unable to persuade Bush otherwise. I’d guess Gonzales’s prospects for the Supreme Court now are pretty dim. If Bush gets to replace Stevens or Ginsburg, I suspect conservative opposition still would be there (though perhaps not as strong, since Gonzales undoubtedly is more conservative than either two). But he’d get killed by the Left, which could turn the entire process into a hearing on the President’s anti-terror policies. If the Bush White House is going to wage that kind of battle over its next nominee, it would fight over Janice Rogers Brown or Priscilla Owen–not Alberto Gonzales.
Tons of fascinating stuff there, particularly as it relates to what Bush might do should he get another shot at the SCOTUS. Greenburg doesn’t think he’ll get another chance, which is too bad. (I think. Fr. Fox is right. We still don’t really know what will happen with Alito and Roberts.)
(While on the SCOTUS topic, HERE is an interesting piece on Thomas; HERE is something called The US Supreme Court Justices Database, COURTESY of SCOTUSBlog; Confirm Them DESCRIBES “a pretty good week;” and THIS needs no commentary.)
Confirm Them is going to be posting a three-part Q+A session with Jan Crawford Greenberg, author of the recently released Supreme Conflict. THIS is Part One, and it contains oodles and oodles of “insider info.”
The closer we get to 2008, the better are Maureen Mahoney’s odds, because she’s a conservative who could get confirmed. I hate to segue from Anthony Kennedy to Maureen Mahoney, because the only thing they have in common is a surname ending in “y.” They are nothing alike. Don’t get me wrong here. I’m not comparing Mahoney to Kennedy. It’s the situation, the timing, that I’m talking about. Mahoney is incredibly impressive as a lawyer and advocate; people who call her the “female John Roberts” aren’t too far off the mark. But lawyers in the Bush administration didn’t seriously consider Mahoney for the O’Connor vacancy because they didn’t believe she was conservative enough. She’d argued in support of affirmative action in the Michigan case, and there was a feeling in the White House that she actually believed her argument. Now that Democrats are running the Judiciary Committee (perhaps Mahoney should be thanking George Allen), her work on that case would be a big plus. Mahoney may not be a social conservative (neither is Estrada, for that matter), but let’s not forget that Mahoney IS a judicial conservative. She’s no Anthony Kennedy. She would be the kind of justice—smart, disciplined, skilled– I’d suspect John Roberts would appreciate having on the Court for the next 20 or 30 years. And she could get confirmed in late 2007/early 2008.
That “Not a Social Conservative, But A Judicial Conservative” line is an interesting one. I don’t want to eliminate it as a logical possibility, I just have trouble imagining anyone actually falling into that category.
Thomas Sowell WRITES about the book, as well. He considers it to be the ultimate Thomas defense, in many ways. And that’s a long-overdue defense, in my opinion. Those who list him as a Scalia clone are being unfair and untruthful. (I’m pretty sure there are no SCOTUS clones, actually.)
What will come as a shock to many who read this fact-filled book is that the picture of Justice Thomas as a blind follower of Justice Antonin Scalia, with whom he often votes, is completely different from the reality.
Notes made by Justice Harry Blackmun during discussions of issues among the justices make it clear that from day one Clarence Thomas staked out his own position on issues, even when all eight of his senior colleagues took the opposite position.
Often it was Justice Thomas whose arguments won over Justice Scalia and Chief Justice Rehnquist — and sometimes enough others for a majority.
(Confirm Them also has a bit of NEWS on upcoming nominations.)
