jurisprudence
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- Crimes and Misdemeanors
Slate's interactive guide: Who in the Bush administration broke the law, and who could be prosecuted?
Emily Bazelon
posted July 24, 2008 - Crimes and Misdemeanors
The law, lawyers, and the court.
Emily Bazelon
posted July 24, 2008 - Take Your Paws off the Presidency!
Does the Bush administration have a secret succession order that bypasses Congress?
Bruce Ackerman
posted July 15, 2008 - Chatter in the System
The New War Powers Commission suggests bold new "consultation."
Dahlia Lithwick
posted July 12, 2008 - "You Remain an Enigma to Me"
And other responses to Michael Mukasey's trip to the Senate.
Emily Bazelon
posted July 9, 2008 - Search for more jurisprudence articles
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Sorry Now?What do the liberal and moderate lawyers who supported John Roberts' nomination say today?
By Emily BazelonPosted Thursday, June 28, 2007, at 1:43 PM ET
In Rosen's initial prediction, you can see another reason for Roberts' appeal with moderate academics: Supporting him was a way to signal that you thought the debate about who should be on the court ought to be about judicial temperament rather than ideology and vote counting. Roberts wouldn't twist precedent, professors like Cass Sunstein of the University of Chicago wagered. He'd carry the torch of judicial modesty: Judges shouldn't reach beyond the facts of a case to settle big questions, they should hesitate to strike down laws passed by Congress, they should know their place as the least-dangerous branch. Praising Roberts for his lack of "bravado and ambition," Sunstein wrote in the Wall Street Journal pre-confirmation, "Opposition to the apparently cautious Judge Roberts seems especially odd at this stage."
So, what do they say now? When I e-mailed them yesterday to ask how they felt about their past support for Roberts, Rosen and Lazarus politely declined to say. (Lazarus is worried about being boiled down to short and misleading quotes; Rosen says he's planning to write about this himself.) I haven't heard back from Kendall. (Update: Here's his response, and mine to him.) Sunstein offered this, "I'm surprised that Roberts has shown no unpredictability at all; in the big cases, he's been so consistent in his conservatism. I thought that he was too careful a lawyer to be so predictable!" His point, which he expands on here, is that because minimalists take each case as it comes and attend closely to precedent, they sometimes reach conclusions that you wouldn't expect from them. Roberts has done none of that. Take the abortion case: The court in 2000 struck down a state statute banning a form of late-term abortion. The logical next step was to strike down the federal ban. Instead, the opinion Roberts joined unconvincingly sidestepped the earlier decision and upheld the new law.
In the end, Roberts' approach isn't leading him to vote differently than Thomas and Scalia, the justices with the "ideologically driven" reputations. Yes, he disagrees with them about whether to heave over precedent rather than dance around it—and he has felt the Wrath of Scalia as a result. But as Walter Dellinger and Dahlia Lithwick have so expertly explored in Slate this week, there's nothing principled or restrained about overruling cases "while pretending you are not." The reassurances to the left about Roberts' virtues look pretty empty this week. And just wait until Roberts becomes a court veteran. The longer he's there, the less relevant keeping or chucking past decisions will be, and the more he'll build, from case to case, on the opinions he has written himself.
In those preconfirmation days in 2005, there was one more argument for broad support for Roberts and Alito. Benjamin Wittes, a member of the Washington Post editorial board when it backed both of Bush's picks, reminded me of it in an e-mail this morning. He has no regrets about his support for Roberts, because he expected to disagree with him on key votes and thought he should be confirmed nonetheless. "Presidents have a legitimate right to move the courts and the principal check on this power is not the confirmation process but, rather, a certain ideological diversity of presidents over time," he writes. You can't argue over the president's power. But you can ask whether smart and influential people who disagree with a president's plans for the court need help him along. It's a good question, anyway, for the next time around.
Remarks from the Fray:
I am sick and tired of even stellar journalists continuing to use false political labels, seemingly without first evaluating them. It drives me insane to continually hear what is plainly authoritarian ideology labeled as "conservatism." Frankly, I find it sloppy journalism born of a fear to be branded as biased.
This is not simply a plea for "re-branding" in some goofy attempt to re-wire people's perceptions. It is a plea made not as a silly political strategy of the left or center; it is made because "conservative" is so profoundly inaccurate in both the political sense of the term and its common usage. Using the "conservative" label inaccurately is a blanket acceptance of the rhetoric and PR campaigns of politicians and public figures. Just because someone describes himself or herself a certain way doesn't make it so. When a Klan member says, "I'm not a racist; I'm just defending my heritage," do journalists then refer to the KKK as an organization of Southern Heritage Advocacy?
"Conservative" in its common use implies modesty, humility, caution, and upholding tradition. "Conservative" in its political definition asserts limited government interference, deference of the Federal government to local and state governments, deference to tradition, and reverence for individual rights and responsibility. So, when journalists can tell me what is conservative about ignoring decades of Court precedent, restricting the Constitutional right of individual free speech, restricting individual equity rights in the workplace, restricting the rights of women to control their bodies, and restricting the rights of local school boards to determine their own policies - when you can do that, I'll accept the "conservative" label. Until then, however, let's try for something approaching accuracy, like "authoritarian conservatism" or just plain old "authoritarianism" because contemporary "conservatism" plainly advocates that State or Corporate authority trumps the rights of the individual. There is absolutely nothing conservative in that philosophy, period. Perhaps "authoritarian" seems a bit too impolite or shrill, huh? Well, "racist" is impolite, too, but it's a much more accurate (and honest) description of the Klan than "Southern Heritage Advocate."
Just because some moderates and lefties have bought into this false label and may associate authoritarianism with conservatism, that doesn't mean the label is accurate, honest, or even useful. I beg journalists to abandon politeness in favor of accuracy and honesty. After all, isn't a deferential politeness by the mainstream media what got us into Iraq and sentenced us to eight years of authoritarian rule in the first place?
--dustino
(To reply, click here.)
The real miracle of the Phase 2 conservative movement (after Reagan and since Newt) is that the conservatives have been an amazing collection of raging assholes (DeLay, Malkin, Bush, Cheney, Krauthammer, Lott, Santorum, O'Reilly), attacking honest people often without supporting facts, insinuating dishonesty and criminality where none exists, and most importantly, playing McCarthyite "patriot" and "you're with us or against us" games with lives, reputations and careers.
Yet all the while they have been able to position people who stand up to their lies, greed and incivility as "shrill" or "obstructive" or "engaged in class warfare." And the media, out of fear or in direct complicity, have refused to note the hypocrisy of the methodology of attack-first-and-then-accuse-the-attackees-of-being-defensive.
So what Bazelon is pointing to here is the new go-along-to-get-along paradigm: people try to portray themselves as likeable and reasonable by going along with Republican initiatives, from the utterly foolish and criminal Iraq War, to the tax cuts that impoverish the majority of us for the benefit of a few, to the nomination of Federalist Society members, who have always been extremists, to the federal bench at all levels.
In going along to get along, [liberals] betray the principles that they told themselves and their friends (and students and readers) that they hold most important. There is no excuse for that.
Folks, this is war, War upon the middle class, and war upon democracy, and war upon American interests. And those that go along to get along, no matter their liberal credentials (Peter Beinart) to their centrist good sense (Colin Powell), to their solid intellectual credentials (the fools that endorsed Roberts). When you support your oppressor, the best that can be said for you is that you committed a crime while suffering battered wife syndrome.
And as the Roberts court will tell you sooner or later, being a victim does not excuse you from being held accountable for your crime, and certainly does not entitle you to a remedy.
--Certainly
(To reply, click here.)
The SCOTUS's job? To make the laws of the land bend to the realities of the Constitution. To make sure that the government doesn't overstep it's power in granting, or in taking away rights. Perhaps more people should remember that the courts job is not to create law, only to ensure that laws are Constitutional, and that they are applied in a Constitutional manner.
Yet, this article doesn't speak, at all, to the Constitutionality of Robert's decisions, but only whether they are "liberal" or "conservative" decisions. I think that the truth is that Roberts isn't especially conservative, but Roberts does try to apply the Constitution to law, rather than attempt to bend the Constitution through the law.
That, in fact, is where politics does come into the picture. Liberals aren't upset with Robert's conservative leanings, but with the Courts current failure to create law. Further, liberals are extremely concerned that the Court will throw out those previously Court created laws, and require such decisions as Roe V. Wade to live or die on the basis of their ability to pass as Constitutional amendments. Liberals aren't afraid of Roberts, in other words, they are terrified of our system working as intended.
--FaxMeBeer
(To reply, click here.)
(6/30)
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