Lithwick on Alito: A Fisking

It's been a while since I revved one of these up, and I do enjoy it.

The Dangling Conversation The one-sided "debate" about judges. By Dahlia Lithwick Posted Friday, Nov. 4, 2005, at 2:12 PM ET

Of all the criticisms of Harriet Miers, the one I found most perplexing was that some Senators felt she spoke too quietly. Her murder boards were going badly, in part because she was a whisperer. Forgive me, but what the hell? She wasn't auditioning for the lead in Annie. She was applying for a job largely composed of reading and writing. I have heard a total of 30 words emanate from the mouth of Clarence Thomas in six years covering the court.

I followed the link Lithwick offers, and the word "quiet" appears precisely once, and is not attributed to any Senator by name, but does explain that the Senator in question couldn't hear Miers' statements and had to ask the people in the hall to shut up. The rest of the article quotes objections to the Miers nomination that includes words such as "gravitas," "underwhelming," "incomplete" and even "insulting." I know reporters aren't used to taking people at their word, but this seems a silly beginning to hang your screed on.

It occurred to me only in hindsight that there was a reason Miers' tiny voice was such an issue: Conservatives wanted to use these confirmation hearings as infomercials for their views on the proper role of judges in America. The soft-spoken Miers wouldn't have moved any product. The John Roberts hearing was, and the Sam Alito hearing will be, Justice Sunday III—the church service/call-to-arms staged by demagogues on the far right. Except these hearings are carried live on C-SPAN, broadcast nationwide, and blessed by the Senate.

You think I am overstating matters? You're not reading the right op-eds. Here is Ned Rice at the National Review Online, scorning Miers as a nominee: "Let's name someone to the Supreme Court whose nomination is guaranteed to trigger a national conversation on the proper role of the judiciary—it can only help the conservative cause. Let's demand that Judge Bork be allowed to take his case against judicial activism directly to the American people."

My God! People of a particular political philosophy desiring that their ideas be given an opportunity to persuade the people! Such perfidy cannot stand!

And here is George Will: "This is the debate the country has needed for several generations: Should the Constitution be treated as so plastic, so changeable that it enables justices to reach whatever social outcomes—'results'—they, like the result-oriented senators who confirm them, consider desirable?" Here is Joe Mariani: "Taking a Mulligan—a golf term for 'undoing' a poor shot—on Harriet Miers gives President Bush an opportunity to launch a public relations offensive with his base solidly behind him. … [I]f the President nominates a strong originalist like Sam Alito, Janice Rogers Brown, Michael Luttig or Edith Hollan Jones, we can finally have that national conversation about judicial activism and tyranny the Left has been dreading for decades."
The italics are mine. But there is, it would seem, a national conversation going on, though it is a conversation in which most of us are not participating. The same devoted right-wingers who torpedoed the Miers nomination are frothing at the mouth

I beg your pardon. No one is frothing at anything. People are eager to make an argument. We are still permitted such by the 1st Amendment, yes? It's not 60 days before a national election.

to explain painstakingly to the nation—yet again—their theory of judging. Liberals believe that the object of these hearings is to find out what a nominee stands for.

And then, when these ideas fail to pass the litmus test that everyone pretends is not there, "torpedo"-ing the nomination. No word yet on whether they froth at the mouth.

But conservatives have long understood that the real point is a mass public-relations effort to drive home their lasting, unitary view of all liberal or even moderate judges as reckless and overreaching.

I'm fairly certain that no such words were uttered during the Roberts confirmation. But then, it's hard to follow ever quote when the loyal opposition's blather renders one doubled-over with laughter or unconcious.

The net effect of the John Roberts hearings was a national four-day "civics lesson" in which the populace heard, again and again, that any approach to judging other than "modesty" and "minimalism" would result in judges making things up as they go along.

Um, no. The net effect of the Roberts hearing was that Roberts became Chief Justice of the Supreme Court. I'm still confused as to why Lithwick objects to politicians and judicial appointees discussing the proper approach to exercising judicial power. Aren't senatorial hearings supposed to function as "civics lessons"?

That's a page from the far right's talking points.

Only the far right? No one on the moderate right? Does a "moderate right" exist in Lithwick's imagination? Or is that term only applied, as Mark Steyn noted to the less psychotic mullahs of Iran?

No competing vision emerged from the left, as far as I could tell.

Say, there's a surprise.

I won't credit the efforts of the Democrats on the judiciary committee to see into John Roberts' heart, or probe whether his kids play soccer with poor immigrant children, as efforts to put forth a competing jurisprudence. Those questions were clumsy proxies for the clumsy theory that judges should just fix life for sad people.

Um, isn't that what liberals want?

I am calling for something else. It's time for Senate Democrats to recognize that a) there is a national conversation about the role of judges now taking place; and that b) thanks to their weak efforts, it's not a conversation—it's a monologue.

That's funny, I could swear all the monologuing was being done by Senate Democrats in the aforementioned efforts to see into Roberts' heart. The guy hardly got a word in edgeways. Who was it that was doing all this yapping about judicial restraint? I mean, besides the frothing far-right conservative ideologues slamming their torpedoes into Miers (anyone else waiting for an accusation of "ideological rape" or some such by the sob-sister crowd)?

Partisans on both sides are eagerly setting one another's hair on fire,

Perhaps this explains the frothing. Or maybe they just need to froth a little higher?

deconstructing every word of every opinion Sam Alito ever penned. Trust me—my hate mail is staggering. But the substance of Alito's writings is a distraction from the main event.

Observe as our intrepid guide shows us the real plan at work.

In truth, conservatives cannot wait for Round 2 of this next civics lesson, a lesson that will star Sam Alito—a charming, articulate, card-carrying conservative jurist with an evolved and plausible-sounding legal theory.

If you're not frothing at the eeeeeeevil being perpetrated here, you obviously aren't reading the right op-eds. Do you see what the bastards are up to! Why, they'll stop at nothing! They'll even nominate charming, articulate men with evolved and plausible theories! Can the Republic ever survive?

It will, unless Democrats get it together, become yet another Jerry Lewis telethon,

Sister, you need to make up your mind. Either the Democrats are selling maudlin and sentimental gush as deep thought, or the Republicans are. Last I looked, Barbara Boxer was not a Republican.

raising national awareness about the dangers of "judicial activism" and the plague of "the reckless overreaching of out-of-touch liberal elitist judges." Democrats in the Senate either will not or cannot put the lie to these trite formulations. They need to shout it from the rooftops: that blithely striking down acts of Congress is activism; that the right's hero Clarence Thomas may be the most activist judge on the current court; that reversing or eroding long-settled precedent is also activism; and that "legislating from the bench" happens as frequently from the right as the left.

There are many words I would use to describe Clarence Thomas, but "blithe" is not one of them. And who ever said that acts of Congress couldn't be made void by the Supreme Court? That is what the Supreme Court is for. What is coming under attack by conservatives is the Court setting a particular public policy goal and man-handling the Constitution by whatever means to get there. The chief criticism of Roe vs. Wade as a decision is that it involved the federal government in an area where the federal government does not belong, and invented a Constitutional right that, if anything, was covered by the Tenth Amendment. That is what is meant by "legislating from the bench." The Supreme Court isn't there to re-write the Constitution to say what it thinks would be best for us all of us to say. It's there to guard it.

Part of this woeful unpreparedness is the result of something we've discussed before—the sinking fear on the part of some progressives that the right's criticisms are somehow legitimate.

Thoughtcrime! Thoughtcrime! Thoughtcrime!

Maybe Roe was judicial overreaching; maybe there is no principled theory for what liberal jurists do.

Is this sarcasm or not? I really can't tell.

Part of the left's program is that any principled theory for what liberal jurists do is complicated.

That's the best way to convince people that you aren't an elitist: say that your ideas are "complicated".

There's no cheap sound bite for Justice Stephen Breyer's notion of "active liberty" or for Cass Sunstein's program of judicial "minimalism" or Jack Balkin's principled "centrism." Or perhaps there is a cheap sound bite embedded in those ideas—it simply hasn't been excavated yet.

Um, wouldn't "active liberty", "judicial minimalism", or "principled centrism" be the sound bites?

Incidentally, I followed the links, and discovered the following:

• Justice Breyers does not explain in the interview linked just what "active liberty" means. But he does admit that the charge that unelected judges making decisions that should be left to the people is "a good criticism, not a bad criticism, even if I disagree with it in particular cases."
• Cass Sunstein says that the courts should let "public debates stay in the political realm, rather than the court providing broad, sweeping judgments on contentious issues," and that "even if they rely on their own deepest convictions, they may make mistakes like Dred Scott." (Doesn't this sound like an argument for repealing Roe?)
• Jack Balkin makes a fair argument that even those who claim to be originalists are inconsistent about applying that theory. But his basic premise: that following originalism would destroy everything we have achieved, is frankly, malarkey. He himself writes that "In the long run, the Supreme Court has helped secure greater protection for civil rights and civil liberties not because judges are smarter or nobler, but because the American people have demanded it." As conservatives have countlessly stated, the end result of striking down decisions like Roe depends entirely on what the people would do in its aftermath. To state on the one hand that civil-liberty guaruntees are dependent on the "living constitution" and to state on the other that the are the result of what the people have decided they want is an attempt to have your cake and eat it, too.

The main attraction of the right wing's relentless attack on the judiciary is that its oversimplified theory of judicial restraint solves its oversimplified problem of unconstrained judges. You have to drill down a lot deeper to see that unconstrained judges are making mischief at either end of the political spectrum, and more urgently, that hogtying judges is not an end in itself. It's a means to an end—with the end, I suppose, being the packing of the courts with judges who say they believe in restraint even as they gleefully dismantle decades' worth of legislative and judicial progress.

But if this "progress" was based on an abuse of judicial power, would not someone who believes in "restraint" want to correct that trend? Again, what we oppose is the re-writing of the Constitution. It's hardly inconsistent to want to edit out what has been improperly added.

The point here is not that Democrats must—between today and the start of the Alito hearings—pull together a well-worked-out global vision of constitutional interpretation.

Wait, weren't you just saying that they already had these global visions? And that they were complicated?

They do, however, need to enter into this "national conversation" about the role of judges with a more evolved doctrine than: "Judge Alito, would you cry if your puppy died?"

Only if the puppy was rabid, one presumes, and thus, frothing at the mouth (I'll stop now).

In his wonderful book, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America, Cass Sunstein lays out four alternative theories of constitutional interpretation and concludes that judicial minimalism is the surest and most principled path. Senate Democrats should commit to memory the parade of horribles Sunstein lists as following from the fundamentalist project (he means fundamentalism not in the religious sense but in terms of rigid adherence to original intent). If the Scalias, Thomases, Alitos, and Borks of the world had their way, he says, there would be no meaningful gun control. States could have official churches. Hard-fought federal worker, environmental, and civil rights protections would disintegrate. What you currently think of as the right to privacy would disappear.

Again, only if the people wanted them too, and got the legislatures to so instruct. If these things are so popular, then there's nothing stopping the Constitution from being amended to include them. But then the Constitution will say it, clearly, and there's no need for us to argue further on the subject.

Incidentally, I wasn't aware that there was any "meaningful gun control."

These are the questions Senate Democrats need to ask of Sam Alito: Should property rights trump individual rights? Should the right to privacy be interpreted as narrowly as the framers might have intended? Do you believe that a return to the morals and mores of two centuries ago is in the best interest of this nation?

It doesn't matter what he answers, indeed the answers are irrelevant.

Oh, of course they are. Because once you ask the questions, the raw, primal truth of them will cause any who hold incorrect answers to spontaneously implode and collapse in a puff of logic, like Sauron at the end of Return of the King. Think Lithwick's been watching The American President again?

By posing these questions to the American people, the senators will give them some understanding of the America that stands to be dismantled. What matters now is injecting an alternative voice into this conversation. To start talking, before the conversation passes us by altogether.

And that would be lovely. Because it might involve something other than the tendentious use of terms like "far-right," "out-of-the-mainstream," and "radical" and offer something like an argument for why the liberal understanding of constitutional jurisprudence should stand. Which is exactly what all the frothing conservatives want.