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The Time to Appoint Liberals is Now

[ 0 ] February 6, 2009 |

Dahlia Lithwick makes the case for a liberal of the Brennan/Marshall variety (although I suppose the best analogy to Scalia would be William O. Douglas.) Unfortunately, I think she’s also convincing when she says that “[m]y own guess is that moderate, centrist Barack Obama is unlikely to name any such creature to the high court.” I think this point from the Adam Liptak piece she cites deserves emphasis:

Justice John Paul Stevens, the leader of the Supreme Court’s liberal wing, likes to say that he has not moved to the left since he was appointed to the court by President Gerald R. Ford in 1975. It is the court, Justice Stevens says, that has 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.


According to a study last year by William M. Landes, who teaches law and economics at the University of Chicago, and Judge Richard A. Posner of the federal appeals court there, four of the five most conservative justices to serve on the court since 1937, of a total of 43, are on the court right now: Chief Justice John G. Roberts Jr. and Justices Scalia, Clarence Thomas and Samuel A. Alito Jr. The fifth was Chief Justice William H. Rehnquist, whom Chief Justice Roberts replaced in 2005.

The study took into account the votes in divided cases on ideologically charged issues like criminal procedure, civil rights and the First Amendment. Justice Thomas, the most conservative justice in the study, voted for the conservative position in those cases 82 percent of the time. Justice Marshall, the only other African-American to serve on the court, was by this measure the most liberal, voting for the conservative side 21 percent of the time.

The study also reinforced Justice Stevens’s caveat, counting Justice Ginsburg as more liberal than the justice she replaced, Justice Byron R. White. But Justice Ginsburg, whom the study identifies as the most liberal current justice, barely makes the Top 10 in the full tally.

There’s a tendency to think of what can be loosely called the “liberal” and “conservative” wings of the Court as being roughly symmetrical. But that just isn’t the case; a liberal wing whose anchors are a Gerald Ford Republican and a someone whose most common voting partner as a Court of Appeals judge was Ken Starr are the liberal equivalents of Scalia and Alito and Thomas, but they just aren’t. This represents what may be the best opportunity to start to balance the scales for a long time, and Obama should take it.

Meanwhile, for your Friday comedy fix, Ann Althouse says that “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.” Given that Lithwick is being completely explicit about the distinction between more and less moderate liberals, this makes no sense. But you may remember Althouse’s (necessarily evidence-free) op-ed arguing that Sam Alito was a moderate to whom fair-minded liberals could not object. I believe this is called “projection.”

[X-Posted to TAPPED.]


Speaking of Which…

[ 0 ] February 6, 2009 |

Rebecca Traister notes the importance of Ruth Bader Ginsburg’s dissent from Dr. Anthony Kennedy’s appalling “despite the fact that there’s ‘no reliable data’ on the subject, we can safely assume that women will get all hysterical if the state doesn’t threaten their health in some cases by making a wholly arbitrary distinction between abortion procedures” opinion in Carhart II. And although apparently the original article was written before it came down, it’s also gratifying that Congress has restored the law to be consistent with her dissent in Ledbetter.

Oh Yeah, That Will Be Worth 15 Bucks A Month

[ 0 ] February 6, 2009 |

I think that PJTV might be the dumbest business venture since some idiot greenlighted Scenes From A Mall.

See also. Of course, as soon as they bring the Blogway Boys back the whole thing will take off. (The Half-Hour News Hour comparison is appropriate; it’s not so much failed comedy as not-comedy.)

Supreme Illness

[ 0 ] February 5, 2009 |

Ruth Bader Ginsburg has had surgery for pancreatic cancer. As noted, “[s]he was treated for colon cancer in 1999 and did not miss a day on the bench,” so her departure from the Court is not necessarily imminent, but obviously our thoughts should go out to her.

The Case for Stimulus Transit Spending in a Nutshell

[ 0 ] February 5, 2009 |

The fact that public transit is being cut as demand is increasing is not only bad and countercyclical in itself, but has additional bad side effects:

One stop scheduled to be cut is in the western suburb of Chesterfield, Mo., just up the road from a bright, cheerful nursing home called the Garden View Care Center. Without those buses, roughly half of the center’s kitchen staff and half of its housekeeping staff — people like Laura Buxton, a cook known for her fried chicken who comes in from Illinois, and Danette Nacoste, who commutes two hours each way from her home in South St. Louis to her job in the laundry — will not have any other way to get to work.

“They’re going to be stranding a whole lot of people,” said Val Butler, a nurses’ assistant at Garden View, who said that she feared looking for work elsewhere in a tightening economy. “A lot of people are going to lose their jobs. A lot of people.”

The fact that transit funding has been cut for the package while a yet another subsidy for home purchasers is being included is depressing.

Leverage, Real And Imagined

[ 0 ] February 4, 2009 |

With respect to the question of whether the stimulus can get 60 votes, Drum outlines what the Democratic leadership should be thinking:

If Republicans really did put up a united front and filibuster the legislation, the Democratic leadership would just turn around and consider the bill under budget reconciliation rules, which require only a majority vote to pass. Sure, they’ve already said they’d prefer not to do that, but if they have to they will. And since the bill is all about short-term spending, it would obviously qualify under reconciliation rules.

So all the public handwringing seems like standard DC negotiating kabuki to me, not a genuine effort to kill the bill. If Republicans filibuster, the public will view them as bitter obstructionists and the bill will pass anyway. It’s hard to see what’s in it for them to go down this road.

In theory, this is of course correct; a filibuster should be both politically damaging and futile for the Republicans, and the Democrats shouldn’t just assume that they need 60 votes but should compel an actual filibuster before just passing the best stimulus they can under reconciliation rules if necessary. The Democrats should realize that the GOP has very little actual leverage here. Whether they do, of course, is another question, and I’m much less optimistic about the answer than Kevin. (Admittedly, it’s hard to tell the difference between concessions being offered to appease Republicans and concessions being offered to appease Blue Dogs.)

The Letter Michael Phelps Should Have Written

[ 0 ] February 3, 2009 |


On a related note, see Balko’s work on the Ryan Frederick trial.

"Thank God, right?"

[ 0 ] February 3, 2009 |

This extensive list of relevant quotes from Bill “O’Racist” O’Reilly leaves out one of my favorite examples:

In THE FACTOR “Follow-Up” Segment tonight, we’ve been following the various demographic shifts throughout America, and now the Census Bureau estimates, by the year 2050, white Americans will make up less than 50 percent of the population. How will that change the USA?

Joining us now from Washington is Dr. William Frey, a demographer at the Brookings Institution. Here in the studio, John McManus, the editor in chief of “American Demographics” magazine.

So I guess this is being driven by Hispanics, right, with all the illegal immigration, millions of people coming in here and the higher birth rate among Hispanics in America. That’s what’s driving this?

JOHN MCMANUS, “AMERICAN DEMOGRAPHICS”: The Hispanic population is the greatest increase that we’ll see over the time period that we’re talking about. Illegal immigration is a portion of the story, but it’s the increase in — rapid increase in immigration and birth rate in people of Hispanic origin that we’ll see.

O’REILLY: All right. Because black birth rate is fairly stable, right?

MCMANUS: Proportionately, black birth rate and increases in their population will level out and be less significant in growth in that time period. I think Bill will be able to address the numbers better than I can, but…

O’REILLY: OK. And how about Asian? What’s the situation with that?

MCMANUS: Asian — we’re going to see a 213 percent increase, according to the Census Bureau projection, and so that will be a very rapid increase of the percentage of their population in the U.S. as well.

O’REILLY: All right. Now, Doctor, the Census Bureau really doesn’t tell us how this is going to affect the country. Do you have any theories on it?

WILLIAM FREY, PH.D., BROOKINGS INSTITUTION: Well, I really think what’s happening is going to be this phasing out or fading out of the white baby boom population. It is a 50-year time period we’re talking about…

O’REILLY: Yes. We’ll all be dead. Thank God, right?

But it’s all taken out of context!

The 17th Amendment: A Good Thing

[ 0 ] February 3, 2009 |

In re the appointment of Judd Gregg to commerce, Beutler snarks:

Surely Gregg’s desire to replace himself with somebody who will often oppose his new boss’s agenda is evidence of his deep commitment to the administration, the cabinet, and the agency he appears poised to head.

As a reason to dislike the appointment, this is fair. But it should be said that on the merits Gregg is of course right to insist on a Republican replacement. As much as I want 60 seats, it would be ridiculous for Gregg’s personal ambition to effectively overturn the results of the last election.

There is, of course, a way to solve these kinds of problems. As has been mentioned recently on this very blog, I don’t think there can be any serious question that vacated Senate seats should be filled by special election. For executive positions, having an immediate replacement in place is necessary, but that’s not the case with legislators. Until his state does it right, though, Gregg is right to insist on a Republican replacement as a condition for taking the job.

Socialism For Me But Not For Thee

[ 0 ] February 3, 2009 |

Shorter James Cramer: Anybody who believes that merely having a business run so incompetently that you require a massive taxpayer bailout should preclude bonuses is a communist. And let’s be frank, nobody who doesn’t receive at least a six-figure bonus works hard.

In A Shocking Development

[ 0 ] February 3, 2009 |

…bloggers are actually taking useful roles in government. As we’ve mentioned before, Lederman’s hire is especially encouraging but they all look impressive.

And even if he wasn’t a blogger, it’s nice to have Holder rather than Mukasey heading Justice. Wheeler has the rollcall.

Deep Thought

[ 0 ] February 2, 2009 |

If only Pajamas Media had put on more blogjams, it could have been the hottest thing since the Victory Caucus.

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