Probably not a popular idea for some
Methinks this won't be the most favorable suggestion for my friends on the left side of the aisle, but I think Matthew Yglesias is dead-on about the confirmation of Samuel Alito:
So what's a Democrat to do? The same thing they should have done on John Roberts -- explain why putting him on the Court will be bad for the country, vote "no," let the GOP majority confirm him, move on to other issues, and try to win the next two elections.
You want to put individuals with more progressive judicial views on the Supreme Court? Then you've got to start winning elections, and filibustering Alito ain't going to help you do that. Taking a principled stand, nominating good, honest and appealing candidates, and running on a positive agenda that draws clear differences between the parties are the ways to get back into power and then be able to nominate your own judges.
But, like I said, most folks on my side probably won't agree with this prescription.
UPDATE: It only took a few seconds of my perusing the comments on Yglesias' post to realize how right I think his suggestion is. In particular, this one sealed the deal:
alito will be more than a bad judge. he will be a bad judge who will help republicans steal elections. you think bush v. gore is a one-time deal? if alito is confirmed, we may never see another fair election.
We may never see another fair election? Listen, Republicans have done their share of dirty tricks, as I'm quite sure have some Democrats ... but to suggest we will never see a fair election again shows just how disconnected some in this debate are from reality. I mentioned this over at Xon's blog a little while back - there are tons of reasons to vote against Alito, but something like
this isn't one of them.
So what's a Democrat to do? The same thing they should have done on John Roberts -- explain why putting him on the Court will be bad for the country, vote "no," let the GOP majority confirm him, move on to other issues, and try to win the next two elections.
You want to put individuals with more progressive judicial views on the Supreme Court? Then you've got to start winning elections, and filibustering Alito ain't going to help you do that. Taking a principled stand, nominating good, honest and appealing candidates, and running on a positive agenda that draws clear differences between the parties are the ways to get back into power and then be able to nominate your own judges.
But, like I said, most folks on my side probably won't agree with this prescription.
UPDATE: It only took a few seconds of my perusing the comments on Yglesias' post to realize how right I think his suggestion is. In particular, this one sealed the deal:
alito will be more than a bad judge. he will be a bad judge who will help republicans steal elections. you think bush v. gore is a one-time deal? if alito is confirmed, we may never see another fair election.
We may never see another fair election? Listen, Republicans have done their share of dirty tricks, as I'm quite sure have some Democrats ... but to suggest we will never see a fair election again shows just how disconnected some in this debate are from reality. I mentioned this over at Xon's blog a little while back - there are tons of reasons to vote against Alito, but something like
this isn't one of them.
posted by Jmac at 7:23 AM
18 Comments:
Against the person's complaint you quoted, wouldn't the proper objective be to ensure that the Supreme Court never has to enter into the process to make the election 'fair' in the first place? As in, either landslide victories or reformation of the electoral process to have clear and convincing wins, or various other democratic procedures. In this sense, I agree with your programme of pursuing a Democratic victory.
The latent idea in that person's concern is the firm belief in the immutability and potency of the Supreme Court, a thoroughly non-democratic—but purely aristocratic (in the classical sense)—branch of the government, and its precisely those kinds of latent ideas that, I think, should be rooted out and reformed in any body serious about a progressive, pro-democracy government. Certainly Alito has the kinds of views that will support naive conservatism, and certainly his position on the Supreme Court will be of great benefit to those who share his support. But there are more political tactics than just commandeering or usurping: there are also isolating and ignoring, defanging and exhausting, among many others.
It's time to relize that we are powerless over the Bush dictatorship.
I'm actually with you Jonathan. It's a pointless fight for the Democrats. I highly recommend they say what they want to say...make Sammy sweat like Marcus Vick in a police lineup...vote no, no, a million times no...then move on. A filibuster only gives the opposition more to lie and gripe about and then...if succesful do you honestly believe that the Bushies will go straight to the center and nominate some savior that appeals to all? No. They will get another Scalia clone, most likely with less of a history than John "The Shadow" Roberts and keep plugging away until the screams of "gridlock" make Ted Kennedy's ears bleed and the guy/girl is appointed.
Suck it up kids...it's Alito time.
One add on...the longer this mess goes on, the more filibustering, name calling, and finger pointing...the more we will see stories/lies/COMPLETE fabrications by "respectable" news outlets like the Good Ole Drudge Report proclaiming "Alito Wife Leaves Hearing in Tears After Dem Attack"...when in actuality it was Lindsey Graham's line of questioning that sent the poor ole girl bolting for the doors.
What a world we live in...who can I trust when even openly biased notorious liars like the fine men and women at Drudge can't be turned to for accurate coverage of one of the most important Court confirmations in decades?
tk, right, and what was Lindsay Graham's line of questioning about? He was apologizing to Alito for the crappy way he thought the Dem senators had been treating him. The AP story makes it sound as though Mrs. Alito was actually upset at the way Graham was talking to her husband, like Graham was the meanie who made her get emotional. But clearly it was the sympathetic words of Graham on the heels of the Democrats' largely irrational attacks (member of CAP, CAP members believed x, so you must believe x, even when you say you don't) that finally overcame her. Typical, though, for the "MSM" to misrepresent the matter, and for Drudge's more accurate headline (in this case) to be mocked instead.
As to charles' comments about "pro-democracy government" and that what all these Dems who oppose Alito are concerned about is "the firm belief in the immutability and potency of the Supreme Court, a thoroughly non-democratic--but purely aristocratic...--branch of the government." But since when do 'progressives' oppose 'non-democratic' courts? It's these courts that have enshrined a significant number of progressive political victories over the last 60 (or more) years. These victories were not won democratically, but through the Courts.
In 2000, of course, everything changed for many progressives, when the Court suddenly ruled against the progressive interest in Bush v. Gore. Now progressives are concerned about "non-democratic" courts having too much power. But the bed is already made, and I'm afraid they'll have to lie in it.
And isn't this JMac's whole point, that the way to "win" as progressives is to start winning elections? "Non-democratic" means have been good enough for progressives in the past, and we're all worse off for it.
I'm in the liberal minority on this one too, but here's my take.
Pissed off about 2000? Think there was some sketchy vote counting in 2004? Yeah, me too.
But don't blame Scalia or Rehnquist or Diebold or even the Secretaries of State in Florida and Ohio. The blame starts a lot closer to home, with Donna Brazile and Bob Shrum.
In both 2000 and 2004, Bush didn't win the election so much as Gore and Kerry lost it. Who's brilliant idea was it to keep a President with Bill Clinton's approval ratings off the stump for Gore? Donna Brazile. Who was the genius who said, Don't dignify these Swift Boat attacks with a response? Bob Shrum.
On a national strategic level, the Democratic Party is being run mostly by people who "came of age" in a political sense during the Clinton years, when we had the Senate, a decent SCOTUS, and our guy in the White House. They got lazy and they got complacent, and we got our asses handed to us.
(I could go off on a major DLC rant here as well, but I'm running late to a lunch meeting.)
I'm just saying, vote to confirm Alito, don't vote to confirm Alito, it's not going to make a bit of difference. And after the Democratic leadership is done wringing their hands about another loss to the conservative minority, let's do some cleaning of our own house.
Just win, baby!
It's getting scary to watch/read about these hearings...maybe this guy isn't the WORST thing that could have happened to us but I think privacy rights, stare decisis, and ANY checks on a president's power are going to take serious hits when Sammy, his Daddy already on the bench, and GA's own start teaming up.
And isn't this JMac's whole point, that the way to "win" as progressives is to start winning elections?
Yes, it is, which is why I said that I am in favor of Johnathan's programme for how to pursue a Democratic (and so, with respect to the party, not the form of government) political project against the complaint that Alito will forever and totally undermine democracy by installing legitimately the Bush fascist state. I think that sort of claim is ridiculous for a progressive to assert, on the grounds that the progressive ought to be the person who believes in democracy to such a degree that the feeling towards Alito is not hopelessness or defeat, but arrogant triumphalism—even Alito cannot stop the progress and march of our democratic institutions. This is not to say that the progressive has no concerns over what Alito can do, but rather that this is just not the end of the democratic world at all ("... or women will die!", as an example) but its occasion for a true and hard-won demonstration of our living in a democratic world.
But I think you overplay my intentions in pointing out the aristocratic structure of the Supreme Court, Xon. The point is this: if what we want is democracy, we ought to focus ourselves on the democratic institutions. Johnathan, I think, is entirely correct on this point, and I think that you share that perspective from the other side. Afterall, if we're worse off for having had the Supreme Court intervene, perhaps will be better off if those of us who talk about democratic reform actually get off our asses and participate in that reform.
As for me, I don't want to give off the impression that I have inclinations to defend or support modern democracy anyway, though I can see where a contemporary progressive such as Johnathan will go right in supporting it in the way that he does. I would rather see his democracy than what we have currently, because what he is doing is actually interested in democracy, and because I think his strategy is more fruitful than in accepting the larger conservative argument that the course of the nation and the world is settled by the educated whimsy of nine unelected officials. These people will hide behind claims that they are being "realistic", but I have no sympathy for either such cynicism or such apathy.
I was away all day and missed a nice little discussion here. Weird that Xon, Charles and I all actually agree about something, at least in theory.
I have long held to the notion that to the winner go the spoils. For Democrats to pout about the judges being nominated to the Supreme Court is rather counterproductive in my opinion. Say why you oppose said nomination, but unless the nominee possesses a clear and unmistakable design on flatly re-writing the Constitution from the bench (or ignoring it), then why go down the road for a filibuster? What Alito has said, despite my own ideological and judicial disagreements, has not been anything I would view as threatening the fabric of American society.
If you really want to do something to change the country, then embrace the democratic process and elect officials from the school board up to the White House who you trust to represent you and your views the best. If you're Xon, that means working to elect conservative/libertarian candidates who want to drastically scale back the role of government at every level. If you're me, it means electing progressive candidates who want to use government to its fullest power to assist those most in need (odds are, we'll probably have to live in different communities which will hinder our college football talkin' ... thank goodness for the Internet).
Xon, with regard to this comment:
But since when do 'progressives' oppose 'non-democratic' courts? It's these courts that have enshrined a significant number of progressive political victories over the last 60 (or more) years. These victories were not won democratically, but through the Courts.
Are you suggesting progressives couldn't win at the ballot, so went to the court to get their victories? This, of course, would be a gross misintreptation of modern U.S. history seeing how progressives controlled most branchs of federal government from the 1930s to the 1980s.
Plus I think it's also inaccurate and unfair to most mainstream progressives - and most mainstream conservatives I'd dare say - because they view Supreme Court decisions on things like, say, desegregation as proper decisions and appropriate interpretation of Constitutional theory. Suggesting some nefarious plan to undermine democracy is a little off in my humble opinion.
You may disagree with their views of Constitutional interpretation, but I think it's wrong to suggest they relied on the courts as a 'back-up' plan. I think most progressives, as I do for most conservatives, are sincere in their differing interpretations of Constitutional interpretation.
Now, you may not be suggesting that, and if so, my apologies.
Oh, and Charles ... I like this:
Yes, it is, which is why I said that I am in favor of Johnathan's programme for how to pursue a Democratic (and so, with respect to the party, not the form of government) political project against the complaint that Alito will forever and totally undermine democracy by installing legitimately the Bush fascist state. I think that sort of claim is ridiculous for a progressive to assert, on the grounds that the progressive ought to be the person who believes in democracy to such a degree that the feeling towards Alito is not hopelessness or defeat, but arrogant triumphalism—even Alito cannot stop the progress and march of our democratic institutions. This is not to say that the progressive has no concerns over what Alito can do, but rather that this is just not the end of the democratic world at all ("... or women will die!", as an example) but its occasion for a true and hard-won demonstration of our living in a democratic world.
Listen, as hokey as it sounds, I love America and I love democracy. Right now, there are a lot of people in the country who share vastly different ideological views than me, and they went out and put people who best represent them in power. That's fine and great. It's democracy at its finest.
So I'll do what I can to try and change some minds and elect folks who best represent me.
"As for me, I don't want to give off the impression that I have inclinations to defend or support modern democracy anyway"
Me neither! Just so we're both clear.
"though I can see where a contemporary progressive such as Johnathan will go right in supporting it in the way that he does. I would rather see his democracy than what we have currently, because what he is doing is actually interested in democracy, and because I think his strategy is more fruitful than in accepting the larger conservative argument that the course of the nation and the world is settled by the educated whimsy of nine unelected officials."
I agree with all of this too, except your characterization of the "larger conservative" argument. Even if you're only meaning to talk about neocons, I don't see how the argument from even them is that "the world is settled by the educated whimsy of nine unelected officials." The whole point of the "conservative" judicial philosophy, is that the world should not be "settled" at all by judges, but rather that judges should put their personal preferences about the outcome of a case aside and should apply the law to the situation. Even if they think the law is stupid. The argument from conservatives (of all stripes, as far as I can tell) is all about not having these nine unelected officials rule over us. This is what conservatives complain about when they talk about "activist judges." To use the commonest example, the Blackmun court went horribly awry in Roe v. Wade by finding a "right to privacy" in the 14th Amendment that simply isn't there, and by applying that right in such a way that the will of every single state was not obliged to do what the Court said. This was "activist judging" at its finest (worst), and is what conservatives object to. They are not objecting because they want to stack the court with "their" judges who will start ruling the world in their way, so much as they are objecting to the very idea that judges should rule the world.
Conservatives would like Scalia even if he went to orgies on the weekends and liked going to Amsterdam to get drugged out of his mind. Because, his personal preferences aside, he believes in (in theory) applying our constitutional system of laws to the cases that come before him. He's not going to declare marijuana legal, even if he does wish it was, because the law right now says it's not. Get it?
To be less silly in my example, think of Justice Thomas' opinion in that Texas sodomy case a couple of years ago. Thomas clearly said in his dissenting opinion that he doesn't like the Texas law (against sodomy), but that it was Texas' right to have such a law. That's the kind of judge conservatives like.
Talk about misreading the vibe of a chat board...I thought we were going "Bush's Mama so fat" and instead it's complex democratic theory that would make even Alexander Hamilton go running to the library.
Of course I don't think that Alito will "stop the progress and march of our democratic institutions", or that America will turn into some post-apocalyptic hellscape upon his confirmation. But there is cause for concern by what he is saying in these hearings. His refusal to admit that there is a super-precedent in Roe v. Wade, or even a Roberts-esque lukewarm acknowledgement of precedent in the case is troubling. Not only for choice supporters but for those who believe stare decisis is a vital doctrine within the Court.
Second, his willingness to accept enhancement and invulnerability of a President's decisions during peace or war time is concerning. Couple that with his gushing praise of Robert Bork (a man who once supporter Connecticut's ban on contraceptives...even for married couples) tends to suggest that privacy rights will not get a fair shake by Alito.
Finally, though Alito shades to the left of Scalia and Thomas, he is still cut of the same mold. No justices on the bench are more influenced by their politics than Scalia and Thomas (see: Bush v. Gore) and I fear Alito will be similarily motivated.
The Court, the Congress, and the country will keep on moving once Alito is confirmed. That does, however, mean I have to be happy about it.
No justices on the bench are more influenced by their politics than Scalia and Thomas (see: Bush v. Gore) and I fear Alito will be similarily motivated.
This strikes me as extraordinarily muddle-headed. I already cited a vintange example of Thomas putting his judicial philosophy over his personal preference, which is (again) exactly what conservative jurisprudence tells judges to do. Citing Bush v. Gore proves nothing, unless you're also willing to admit that the 4 justices who went "with Gore" were also politically motivated. The bottom line is that was a politically-charged (no, explosive!) case, so any decision by any justice will seem politically motivated in hindsight.
Is there some other case (or, preferably, cases) that you have in mind, tk, when you say that Thomas and Scalia "most influenced by their politics"?
tk, I don't have your comments specifically in mind—unless you were the commentor on Yglesias' blog Johnathan was referring to—but I attend some other politically liberal and politically left blogs and journals, and they do think Alito will usher in the new age of fascism. (Personally, I think there is a crucial difference between tyranny and fascism, but who gives a damn about finesse anymore?) I hardly know you, tk, but perhaps over time that will change and we could be proper judges of one another. At any rate, we could talk about how Bush's mama is fat, if that is preferable. It perhaps is.
Xon, I think the very argument that conservatives want judges who leave their "personal" views behind and judge the constitutional matter on the spirit and letter of the Constitution is precisely to uphold the notion that the educated whimsy of the Nine has sway over the course of the United States governments. Afterall, why should we demand this of them? Well, because if they do justice from their personal views (as in your Blackmun example), we will arrive at government practice in which states are unable to govern in a deliberative and provincial way, but must govern in a way conducive to what the majority on the Court think ought to be just or right. The old line that with great power comes great responsibility begins with the assumption that great power is a real actuality (nobody says this about hamsters, garbage collectors, or the homeless). The framework of the Court that has been constructed over these centuries is such that it is one of immense power, thus the reason why conservatives believe it should not rule the world (it can, and the more disturbing examples demonstrate this) and why they want justices who can perform the ideological manuever of suppressing one's desires for one's higher Desire (because greater than individual tastes is the space in which [certain] tastes are possible).
So, I'm taking the assertion of the desire for a negative as the live acceptance of the real possibility of what is negated.
And, I think you're wrong that conservatives do not want justices who judge according to conservative philosophy. Let's be pedantic. Is conservative judicial philosophy a subset of conservative philosophy, or isn't it?
Charles, I understand better where you are coming from now. Of course conservatives recognize that the Nine currently do in fact have great power, since that is precisely what they are so worried about.
As to your "pedantic" question, as I have always understood it (and this is one of the few issues on which my own conservative leanings have never been much modified, nor have I ever noticed much (any) disagreement among the various stripes of conservative that are out there), conservative judicial philosophy is a part of conservative philosophy. If conservative philosophy has something to do with republicanism (notice the small 'r'), i.e. the notion of a representative government structured around laws. The conservative philosophy then applies this commitment to republicanism to judges quite straightforwardly--the job of a judge is to apply the law straightforwardly and honestly (to "strictly construct" it) to whatever disputed matter is brought before him. His job is not to "change" the way the system works, but to allow the system to work as it has been set up by others.
This does have the somewhat ironic (I suppose) result of opening up the possibility that a judge a conservative would approve of need not be a conservative himself, so as long as he adheres to the very limited 'conservatism' of judicial philosophy. A socialist who lives in a community that mutually strives together and pools resources to produce child porn, for example, could still--in theory--make a great "conservative" judge, so long as he does not use cases that come before him as a pretense for extolling (and legislating) the benefits of child porn and communitarian living. But I don't see how this is a 'problem' for a conservative philosophy, certainly less so than, say, (for lack of another example off the top of my head) Marx's willingness to suffer the "useful idiots" of his day in the overall pursuit of the communist program.
Citing Bush v. Gore proves nothing, unless you're also willing to admit that the 4 justices who went "with Gore" were also politically motivated.
Yes and no. Bush v. Gore was an extraordinary case where it was almost impossible to divorce political allegiances from judicial philosophy, but from what I have read it also was a very inconsistent ruling with regard to other rulings and precedents. I'll have to go back and check it again, but I think it's unfair to merely say the four more progressive justices acting solely out of politics ... and likewise I think it's unfair to say the five justices who rule for Bush were doing the same. I think tk actually was referring to merely Scalia and Thomas, who I personally believe were acting primarily on politics based on what I know of the case. But I don't want to speak too boldly until I go back and brush up on my Bush v. Gore.
I shall no longer conceal myself...the ingenions moniker "tk" is in actuality just my initials...my name is Tim. There, that lends some humanity behind my muddled arguments. I really do enjoy debating this subject...you kids really know your stuff. Take that studies that say Americans only care about reality TV and eating delicious circus peanuts! (Not so sure about that second one)
Just wanted to clear a few things up - the last time I wrote I had not read Xon's post that was up immediately before mine. So that is why I did not acknowledge anything he said...it was not meant as a slight.
Second...Bingo, Bango, Boingo Jonathan: "it also was a very inconsistent ruling with regard to other rulings and precedents" - that's what I was shooting for the Thomas and Scalia as politically motivated comment. No doubt others on the bench certainly possess strong political opinions as well but Thomas and Scalia are special cases because of their staunch devotion to their textual/originalist approach to Constitutional Law....except when it doesn't favor their political beliefs. That's where Bush v. Gore comes in and I too must admit that I haven't read it in awhile and I don't intend to right now because the last thing I want to do after a week of law school is read more case law. However, from what I do remember it seemed particularly odd that Scalia and Thomas would be of the opinion that it was kosher for the Court to tell the Florida court what they could and could not do when they had fought tooth and nail against the Court doing the same thing when it comes to sodomy laws. That's where Xon's point about Thomas comes in: forgive me if Thomas' opinion rings a bit hollow for me. I mean, come on, how prinicpled of a stand was it for one of history's most conservative judges to say he didn't like the law but still rule that it should be upheld? He covered all his bases in that opinion just like a good politician. If he broke down and upheld Congressional action under the Commerce Clause and wrote in his opinion "I hate what Congress is doing but its perfectly constitutional" then I might be singing a different tune.
Finally - Xon asked for cases and as I said, I'm not going to get on Westlaw during my three day weekend but from my cloudy memory I would say look at cases like Rasul v. Bush (I think that's right...I do warn that any or all of these names may be wrong) in which Thomas (or Scalia, can't remember) goes bonkers over the Court daring to overturn precedent in an effort to give the executive branch authority to detain enemy combatants. Then they tap dance on the precedent of Roe v. Wade in the cases following it.
Wow, this is the latest on a Friday I have ever thought about law.
Without anyone really having the energy to dig up particular opinions, I don't know how much more we can say. But I will give one quick response to this:
"That's where Xon's point about Thomas comes in: forgive me if Thomas' opinion rings a bit hollow for me. I mean, come on, how prinicpled of a stand was it for one of history's most conservative judges to say he didn't like the law but still rule that it should be upheld? He covered all his bases in that opinion just like a good politician. If he broke down and upheld Congressional action under the Commerce Clause and wrote in his opinion "I hate what Congress is doing but its perfectly constitutional" then I might be singing a different tune."
First, I think this skepticism about Thomas' sincerity is indicative of our problem with 'activist' judges. When a judge makes a ruling we disagree with, and says that he himself doesn't like the law but feels like his hands are tied judicially, we say "Well, he's just covering his bases like a good politician." But why assume a political motivation to Thomas' opinion there? What higher office do you think he is seeking? He's already on the SCOTUS, for crying out loud!
Then, when giving an example of a ruling that would impress you of his sincerity, you basically describe a situation where Thomas would have to hold different views about the Constitution than he actually does. So, he's a politician when he says that his ruling is motivated by simply 'doing his job' as a judge, but he's not a politician if he judges a case the way you wish he would. I'm lost.
To bring all this back around, I'll give a favorable eval of a judge on the right. Bryer or Souter (I believe, I don't remember exactly which one) clearly stated in Kelo this past summer that he hated the way Conn. was using eminent domain, yet Constitutionally he sees it as a 'states' rights' issue. Well, I actually have to agree there. The 'conservative' justices all pointed out (rightly) that the fifth amendment cannot reasonably be read to include 'private' transfers under eminent domain, but what Scalia et al missed is that the fifth amendment is only intended to apply at the federal level anyway. If Georgia, Connecticuit, etc., want to pass more blatantly corporatist eminent domain laws, then they can do so (and I, personally, will do everything in my power to leave the state!) But I respect Breyer or Souter or whoever for making that decision.
(Although, it does come off as a bit disingenuous when progressive judges suddenly become the party of 'states' rights'. Where were they for the last 160 years?)
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