Author Page for Scott Lemieux

"Interpretive" Means "Agrees With The Republican Platform"

Matt highlights this argument by the ever-more-embarrassing Charles Krauthammer:

For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions — school prayer, abortion, busing, the death penalty — that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. [my emphasis]

As Matt points out, virtually no conservative actually believes that the Court should always defer to the legislature on contestable questions, so this is just question-begging. What’s even funnier, however, is how transparently outcome-oriented Krauthammer’s list is; the phrase “interpretive role,” which carries all the weight in the argument, is an empty shell that can easily be used to defend any of the decisions he decries. Since we’ve debated it enough, let’s leave aside abortion for a second. His other choices are canny because (unlike abortion) they represent positions where judicial decisions have been genuinely unpopular with the public. But do decisions prohibiting school prayer represent the court abandoning an “interpretive role”? Obviously, this is ridiculous; the Establishment Clause is surely relevant to the question of school prayer, and even Rehnquist’s theory of “nonpreferentialism” clearly prohibits direct religious indoctrination by the state, which was the subject of the Court’s first opinions in the field. With respect to busing, even leaving aside the fact that the Supreme Court has never required busing, it can reflect an “arrogation” only if one believes that Brown v. Board was incorrectly decided, which few conservatives are willing to do (at least in public.) Courts unquestionably have the power to order remedies in response to constitutional violations by state actors; one can argue that busing is unwise or ineffective, but these are not questions of constitutional interpretation. With respect to the death penalty, the only “radical” change ordered by the court was a temporary ban–that lasted less than 5 years. In addition, it’s important to note that the Court did not argue that the death penalty was inherently unconstitutional, but that it was unconstitutional in its application (hardly a “radical” position given the way in which the death penalty–which was most frequently used in the apartheid states–was actually applied in the decades preceding Furman.) The Constitution’s due process and equal protection clauses plainly make the application of criminal statutes matters for judicial review. I agree that the Marshall/Brennan position that the death penalty is always prohibited by the 8th Amendment is implausible, but with the exception of a few months at the end of Blackmun’s career it never commanded more than 2 votes. (And, of course, given the broad, abstract phrasing of the 8th Amendment, simply intoning the word “intperpretation” does not tell you if Brennan and Marshall are wrong.)

So, in other words, this has nothing to do with constitutional interpretation; Krauthammer doesn’t even tell us what his theory is, or under what theory the 1st Amendment permits state endorsement of religion or the powers of “law and equity” forbid local courts from ordering remedies in response to constitutional violations. It’s just a catalogue of policy outcomes he doesn’t like. Moreover, he of course ignores obvious examples of conservative justices “arrogating” the role of legislatures–for example, magically transforming the 11th Amendment from saying that you cannot sue another state in federal courts to saying that you cannot sue your own state in federal court–that may or may not be right but are certainly not consistent with some general theory of judicial deference to legislatures. And, of course, this is unsurprising; the idea that most American conservatives believe in “judicial restraint” in any non-tautological sense is just a myth, and judicial restraint has nothing to do with conservative opposition to the Miers nomination.

Miers is The Worst Possible Bush Nominee Except for All the Others

I’ve been reflecting on my initial take on the strategy surrounding Miers. And the more I think about it the more I have to say that I think that (gulp) Kos is right and Belle Waring is wrong. The Democrats should tacitly allow Miers to be confirmed. Belle does make the strongest point, which is the claim that Dobson’s support means that she’s probably a vote against Roe. But I don’t think so. First, as Atrios notes there were some evangelists who thought O’Connor was opposed to abortion rights; in this case, nobody knows because there just isn’t any solid evidence, and Bush’s predictions don’t really mean anything (particularly given that Bush is almost certainly more concerned with upholding presidential power than overturning Roe.) In addition, it must be considered as well that Dobson has an extensive history of being the GOP’s useful idiot, especially when it comes to understanding the relative power of economic and cultural reactionaries within the Republican Party. (And, really, how seriously do you take James Dobson’s good judgment in any case?) Dobson’s secret messages, then, are one piece of evidence, but they hardly remove the very real ambiguity about how Miers will rule in particular cases, an ambiguity that is inevitable given her record.

Anyway, and I think this is the important point, any analysis of this question has to start with the obvious truth that a clear supporter of abortion rights (or opponent of the “New Federalism” or whatever) is not on the table. I feel like I’ve been having the same argument since several smart people I know decided to vote for Nader in 2000, but the belief that the Democrats can somehow stop Bush from appointing a bad judge if they just try really hard is precisely equivalent to Bush’s assertion that we can have a stable pluralistic liberal democracy in Iraq if we just try really hard. The Democrats may be able to stop an individual bad nominee–maybe two–but there are no circumstances under which you’re getting a nominee who clearly supports progressive jurisprudence, even if it’s confined to a narrow set of issues like abortion rights. “Bush’s nominee” vs. “somebody you would actually want to see on the court” is a false choice; any chance of the latter ended when Bush was re-elected. The decision to be made about Miers has to be made by weighing the probabilities involved among bad choices. So once we accept the real dilemma, what do you think is better for progressives:

1)Is it better to have an ambiguous candidate who may be thought a wingnut, or get an Owen and remove all doubt?
2)Is it better to have somebody at/over or under 60?
3)Is it better, given the inevitability of a conservative nominee, to have a lightweight who will pass without much of a mark or somebody who will write lots of persuasive opinions and leave her stamp on constitutional doctrine for generations?

In all 3 cases, I think, you have to go with what’s behind door #1, and that’s Miers. Spending capital to reject Miers can only lead to someone who is some combination of more unambiguously conservative, younger, and more likely to leave a mark on the court’s doctrine. I can’t see any way it’s in the interests of progressives to pull out the stops to block Miers. Miers could, of course, be just as awful as Owen, Brown or Luttig, but even if she is you’re not really any worse off.

The other objection, of course–and I suspect that Belle would largely concede my political analysis and this is the core of her argument–would be to argue that I’m being too coldly political. I can understand the concerns of people like Belle and iocaste that this reflects contempt for the court, and this is intolerable whatever the political consequences. (And I do agree that Dems should make Bush’s cronyism clear, and should largely leave to Republicans the dirty work of confirming her nomination.) But the way I look at it, the court has had mediocrities before and will again, and yet the republic stands. Indeed, much worse than mediocrities; judicial supremacy has become entrenched despite the fact that as World War II started there sat on the Court a justice who held that the first trials of the Scottsboro Boys were constitutional (after all, the state went to the trouble of putting on three separate show trials!) and prevented a Supreme Court picture from being taken in 1924 because he refused to sit next to Louis Brandeis. (And, of course, judicial supremacy–especially with Republicans in charge–is hardly an unequivocal good.) Moreover, even with Miers on it the current Court would be well above the historical mean in terms of intellectual firepower and professional credentials. I think we need to look at more direct results.

Look at it this way. If the Court overturns Roe and strikes down the Endangered Species Act and expands its claim that state universities should have the same legal immunities as 16th century British monarchs and further guts habeas corpus, are you going to be consoled by the fact that the opinion in question is really well-crafted? I won’t. And rejecting Miers can only make these outcomes more likely.

As Long As Domino’s and the Escort Services Deliver…

What Roy said. What’s most remarkable to me is that Reynolds never seems to consider that people might want to go into cities for any reason other than working; you know, to see a play or a ballgame or a non-Hollywood movie or the opera, or even just to walk around with some friends. There’s something about the sheer emptiness and philistinism of Reynolds’ vacuous techno-futurism that’s always especially grating.

Shorter George W. Bush

This will surprise most of you, but our new enemy is in fact real bad, like the Nazis and Pol Pot and Stalin with his goo-lags. We will beat them if we just try really hard. Jihad is over if you want it. If your system of government was a tree, what kind of tree would it be?

Hockey Blogging: It’s Not Just For Michael Berube Anymore…

Ah, Opening Night, and it is with both pride and sorrow that I note that the noblest franchise in sports has been, somewhat shockingly, picked by Sports Illustrated as the #1 team in the league. Whether I would go that far I don’t know, but they have 1)the best player in the league, 2)excellent goaltending, 3)the best defense corps in the conference (although Regehr’s injury is a concern), and 4)several forwards with the wheels to take advantage of the new rules. Oh yeah–the new rules. I would say that I like get rid of the two-line pass, am fine with the rules restricting goaltenders, and hate the shootout, although at least it goes away in the playoffs. (Seriously, I don’t mean to knock soccer–I’m sure I would be a fan if I lived in most other countries–but there are distinct upper limits of respect I can have for a sport that allows its most prestigious events to be decided by shootouts, which is just abominable. It’s like playing 10 innings of Game 7 of the World Series, and then just deciding the thing with a home run derby.)

Alas, being picked by SI as a league’e best team is a serious problem–ask the 1987 Indians.

When I was looking up the odds for my baseball picks, I notice that the Vegas favorite to lead the league in scoring is none other than the tanned, rested, and beautifully named Mario Lemieux. Granting that he’s one of the best ever and the Pittsburgh offense looks pretty stacked, “sucker bet” seems too generous…

And It’s Not Just Frum…

You would like to think that the patently untrue assertion that Bush v. Gore was a 7-2 decision (the first one in history, apparently, with 4 dissenters who did not join any part of a majority or concurring opinion) would be limited to particularly dishonest conservative hacks trying to deny the self-evidently partisan nature of the decision. But the Con Law casebook I used to use made the same claim (although I haven’t checked the new edition yet.) Ugh. I mean, I can understand a reporter in the immediate aftermath of the decision making that mistake, but after you have time to look at it, it’s just a question of being able to count. (And as iocaste notes, it’s not even true in any informal sense; “there is an equal protection problem so…we’ll just shut it down and go with a count that by our own logic is just as flawed as the one we’re saying is unconstitutional” is an entirely different position from “there is an equal protection problem so let’s send it back to the Florida Courts so they can supervise a constitutional recount,” and it’s ridiculous to pretend otherwise.)

…UPDATE: I notice that the new edition of O’Brien does claim that the equal protection claim was “upheld by a vote of 7-2 [my emphasis].” So I will continue to boycott it when I teach the “organizing government” Con Law class…

Good Boy!

Shorter Fred Barnes: If it feels this good being used, you can keep on using me until you use me up.

This article does tell us what Bush’s strategy of invoking the Souter bogeyman by reassuring people that she “won’t change” may prove to be very effective. While I’m happy for conservatives to believe this, I think this is an odd misunderstanding of the “problem” (from their perspective) with Souter. He has, perhaps, changed a little bit in his tenure on the Court, as he has further grappled with federal constitutional issues. But, really, I don’t think he’s changed to any significant degree. Souter has always been an incrementalist moderate like his hero, the second Justice Harlan; there was never any chance he was going to start voting to routinely overturn popular decades-old precedents. (And, of course, Harlan thought that the Connecticut ban on contraception was the most flagrantly unconstitutional law he had seen in his time on the bench, and he wrote what some people consider to be the most powerful case for its unconstitutionality. I don’t think there’s any evidence that Souter ever opposed the Griswold/Roe line of cases.) And, of course, Casey came after Souter had been on the bench for less than 3 years–how much can you “evolve” over that time? The problem with Souter, if you’re a reactionary, is not that he changed but that he never agreed with you in the first place, and this the danger of appointing judges with little track record in federal constitutional cases. There are certainly instances of judges changing over time–Blackmun certainly did. But, again, with respect to the case Blackmun is most famous for, I don’t think there was significant “evolution”; if there’s any evidence that he ever thought that a blanket bans on abortion was constitutional, I haven’t seen it. It’s not that Nixon screwed up, it’s that–like, I suspect, the first Bush, who was a pro-choicer until he ran for president–he didn’t particularly care about abortion. Which is why 3 of Nixon’s 4 appointees voted with the Roe majority, and Rehnquist apparently dissented because he’s generally unsympathetic to individual rights claims, not out of any particular affinity with the pro-life cause.

None of this is to compare Miers to Souter. First of all, the latter is a Rhodes Scholar and a very scholarly man who had served on New Hampshire’s Supreme Court (and as its Attorney General), and also had served (albeit briefly) in federal appellate court; it’s frankly outrageous that some people are comparing the two in terms of credentials. And it’s a good bet that Miers will prove to be significantly more conservative. But about how she’ll rule in any particular case, nobody knows, and not knowing can cut both ways.

Defining Qualifications Down

Belle Waring finds this gem from “The American Thinker(sic),” approved as “persuasive” by Glenn Reynolds:

As the court’s new junior member, the 60 year old lady Harriet Miers will finally give a break to Stephen Breyer, who has been relegated to closing and opening the door of the conference room, and fetching beverages for his more senior Justices. Her ability to do this type of work with no resentment, no discomfort, and no regrets will at the least endear her to the others. It will also confirm her as the person who cheerfully keeps the group on an even keel, more comfortable than otherwise might be the case with a level of emotional solidarity.

But there is much more to it than group solidarity, important though that ineffable spiritual qualty may be. Ms. Miers embodies the work ethic as few married people ever could. She reportedly often shows up for work at the White House at 5 AM, and doesn’’t leave until 9 or 10 PM. I have no doubt that she will continue her extraordinary dedication to work once confirmed to the Court. She will not only win the admiration of those Justices who work shorter hours, she will undoubtedly be appreciated by the law clerks who endure similar hours, working on the research and writing for the Justices. These same law clerks interact with their bosses in private, and their influence intellectual and emotional may be more profound than some Justices might like to admit.

So, Harriet Miers is qualified for the Supreme Court because 1)she was willing to bring pastry to Sunday School, and 2)she works hard. Of course, by these criteria a fairly large percentage of the country is qualified to sit on the Supreme Court–think how qualified she would be if she would only pet kittens and say nice things about babies on a regular basis!–but since I don’t have an MBA I guess I don’t understand these strategic complexities.

And even Reynolds isn’t buying this claim that because Robert Jackson didn’t have a law degree, Harriet Miers must therefore be well-qualified. (Incidentally, like Mark Tushnet I’m not really inclined to go along with the idealization of Jackson that seems to permeate these debates, although I guess that’s a subject for another post.)

Grade Complaints

An old-skool response, which I mean as praise…

The Conservative Race Contradiction

I notice that Atrios just linked to it, which makes my link somewhat pointless, but there is one element of Roy’s extremely persuasive critique of Bill Bennett that’s worth highlighting:

The actually offensive part of Bennett’s statement was his assertion that mass black fetuscide would, of necessity, cause crime to drop. Bennett’s defenders do not dispute this idea — in fact, they appear to consider it beyond dispute.

It’s strange that so many public intellectuals think the condition of black folks will not improve in another generation. In a way I am more surprised by the conservatives than by the eventheliberals. We are constantly assured by them that Iraq will swiftly improve, indeed, will soon flower into an oasis of democracy. If that shitstorm can subside, why not black crime stats?

Right. The assumption made by liberal like Yglesias or DeLong that crime rates will be higher among African-Americans in the next generation can be easily explained by the assumption of most progressives that 1)racism remains a stubborn problem, especially where criminal justice is concerned, and 2)even is individual prejudice and the worst formal inequalities are lessened, the structural effects of racism persist. But conservatives, of course, generally disagree with these premises. At any rate, conservatives who defend Bennett’s premises have two options:

1)They can believe that black people are inherently more likely to commit crimes. (Or, in other words, they are racists.)

2)They can concede that the general conservative dismissal of the continuing importance of racism–whether direct or structural–is wrong.

There is no third option.

Against the Streamlined Procedures Act

The Justice Project has an extremely useful page about the Streamlined Procedures Act, the awful proposed legislation I recently wrote about. It includes good analysis, links to the legislative text in both the House and Senate, and opportunities for action. Definitely check it out.

The Playoffs

Yankees v. Angels The Angels actually had a better run differential than the Yankees, although once you adjust for the competition the Yanks are a little better. I don’t care for the Angels’ free swinging -offense, which looks even weaker next to the Yanks’ classic on-base-and-power machine. And yet, I don’t think it’s a fluke that the Angels have fared well against them; the matchup is very favorable, as the Angels’ high-contact offense is well-position to take advantage of the Yankees’ terrible defense. In particular, the one LF-and-and-two-DHs outfield is going to be a serious problem against the Angels. My co-blogger with a Prospectus subscription tells me that Jeter is having is first good statistical defensive year, but I’m dubious; as I understand them, the BP adjustments can’t fully account for the fact that somebody has to make outs on a bad defensive team, his ZR is below-average for major league SS (although barely this time), and in September to my eye he was covering about as much ground as Kate Moss’ bikini. Rodriguez is good and Cano can turn the deuce, and this exhausts the Yankees’ defensive assets. Johnson will beat the Angels, but I think that the gutty but low-strikeout Chacon and Wang are going to run into trouble, and who knows what to expect out of Mussina. The Angels rotation is underrated, and while Rivera gets the edge as closer the Angels’ bullpen depth is vastly better. Home field helps too; I think the Angels will squeak it out. WINNER: Angels IF YOU HAD TO BET: Angels +120

White Sox v. Red Sox I don’t have any special insight here; like most people, I don’t think the White Sox are a legitimate 99-win team, and I think the the 4-game difference in “3rd order” wins probably underestimates the gap between the teams. The White Sox are a model of teams who don’t do well in the post-season: dubious on-base skills, aggressive baserunning, not enough power. Although I don’t trust the White Sox’ low-K rotation against a good offense, admittedly the ChiSox have an edge in starting pitching. But I don’t think their offense can exploit the Red Sox’ somewhat shaky rotation. (The strange thing is that the Red Sox losing the division worked out well in the end; I think they get the much easier series.) WINNER: RED SOX IYHTB: Red Sox -150

Padres v. Cardinals Yeah, anything happen in a short series. And while they’re far better I actually have some of the doubts about the Cardinals that I do about the White Sox; I wouldn’t trust the back end of their rotation against a quality offense, and while Carpenter is legit LaRussa was crazy to have him throw 240 innings. Peavy is a legitimate ace. But sill, the Padres are by far the worst team ever in the post season, somehow getting outscored by 40 runs in a brutal division. The Cards remain the class of the league. The Padres winning would be the biggest upset in baseball since the ’90 World Series; about the only hope the Padres fan can have is who was managing the team on the receiving end of that upset. WINNER: Cardinals IYHTB: Padres +330

Braves v. Astros Ugh; here’s a series I didn’t want to see again. As I have argued before, I think that Cox’s relatively poor outcomes in the playoffs are as much luck as anything else. The problem is that this team just isn’t that good; I think the Phillies and Mets would both have a better shot at this point of the year. The Braves’ offense is better, but not enough; in a short series the Astros’ rotation is a huge advantage, especially with Smoltz in dubious health, and the Braves don’t have a Lidge in the bullpen. I wouldn’t mind seeing the Braves win this year, but I don’t see it. WINNER: Astros IYHTB: Astros -120

..admittedly, I probably should have placed more emphasis on the fact that Matt Clement hasn’t gotten anyone out in 2 months…