Harold Meyerson betrays the very conventional wisdum of his Kaplan Daily fellows to praise “John Paul Stevens, the restrainer“:
Justice John Paul Stevens has long been labeled, correctly, as the leader of the Supreme Court’s liberal bloc, but I suspect that future historians will refine that distinction a little more carefully. Stevens’s chief contribution has been to lead opposition to the galloping judicial overreach of the court’s conservatives.
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It’s that opposition that’s on display in his two best-known dissents: First, in Bush v. Gore a decade ago, then, this year, in the Citizens United case.
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In the earlier case, Stevens gave voice to all those who felt queasy, constitutionally no less than politically, about the Supreme Court effectively bestowing the presidency on George W. Bush, in a decision that broke de facto, if not de jure, along the justices’ party lines…
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[…] That same skepticism towards judicial overreach suffused Stevens’s dissent in the recent Citizens United decision, which overturned nearly a century of established law to give corporations the right to make direct limitless investments in political campaigns. In his questioning from the bench during oral arguments, and then in his lengthy and impassioned dissent, Stevens was clearly appalled that Chief Justice John Roberts and his right-wing colleagues had inflated a case that raised rather narrow issues so that they could strike down a century of precedents and free corporations from constraints on their political influence that only rightwing ideologues could lament.
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Scholars will surely cite Stevens’s dissents as the leading examples of how judicial restraint became the mantra not of conservative justices but of liberal ones during the late 20th and early 21st centuries. And yet this shift, however epochal, has not been sufficiently acknowledged by either the news media or politicians. Indeed, Republican elected officials still get away with ritual condemnations of liberal judicial activism, as though it weren’t the right-wing justices, whom they elevated and supported, who were the real activists. Reacting to Stevens’s retirement announcement today, Senate Republican leader Mitch McConnell said, “As we await the president’s nominee to replace Justice Stevens at the end of his term, Americans can expect Senate Republicans to make a sustained and vigorous case for judicial restraint and the fundamental importance of an even-handed reading of the law.”
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Would that McConnell actually meant what he said. If he did, he’d back a liberal nominee in the tradition of John Paul Stevens.
Linda Featheringill
Right now, I would be satisfied with a Supreme Court that just stuck to the Constitution. That would be such a refreshing change.
dan robinson
I don’t understand the what Anne is saying with regard to conventional wisdom. Here is Stevens in Bush v Gore:
Yes, Stevens ‘gave voice’ to me. Sometimes the conventional wisdom is on point. What is Anne’s point?
Basilisc
Judicial activism is only wrong if it’s done in defense of negroes. Everyone knows that.
Sasha
Dawn Johnsen withdrew her name from consideration to the OLC.
There’s a vacancy in the Supreme Court.
Hmmmm . . .
:)
Quackosaur
…so long as “the law” refers to the Bible (KJV, all other “translations” are heretical writings of madmen seeking to portray Jesus as a soshulist, pinko-commie liberal-fascist), the nominee has only one (right) hand, he favors chaining jurists to their benches, and he pledges to uphold the judicial wisdom of Zombie Reagan and Lady Starbursts?
I think that’s what McConnell meant to say, anyway. They must have cut the quote short or something.
Damn that liberal media!
/snark
Short Bus Bully
What can I say? Repubs are still pissed about Bork. Can you imagine if that crazy fucker was up there? He would make Scalia look like Sandra Day O’Connor.
TuiMel
Betrays as in “reveals” or betrays as in cuts “acts in opposition to the interests of.” I, too, am not sure of the point.
TuiMel
@Basilisc:
Let’s not forget women…
thomas Levenson
I think the point is clear. Conventional wisdom is that liberal=activist judge. This columnist makes the obvious but rarely spoken point that “conservative” = radical (and activist) in the current climate, both judicial and political. And he’s right.
More of this please. Much more.
El Cid
Remember, right wing (“conservative”) moves are the natural order of things; attempts to oppose a 30 year trend of right wing reactionism in law, politics, and economics — now that’s unusual, unnatural, “liberal” [and of course, “activist” in judicial parlance].
WereBear
FMS bless Justice Stevens, who has hung in there far longer than he wished (he is 90) just so we, the people would not be thrown on the not-so-tender mercies of a majority wingnut court.
Along with everything else, United Citizens is simply bad judicial judgment; I think it will have unanticipated poor consequences for the corporations, actually.
As well as for actual people, as undermined as our status is.
Martian Buddy
@dan robinson:
“Conventional wisdom” in this context refers to the consensus amongst WaPo writers, who live in the mirror universe where Scalia and his cronies are the guardians of original intent and John Paul Stevens has a goatee and makes activist rulings.
Keith
Ergo Obama should pick a center-left moderate to keep some sort of phony “status quo” rather than an unabashed liberal. Riiiiiiight…
burnspbesq
@Sasha:
No way. Johnsen can’t even get the traditional consolation prize, a seat on the Seventh Circuit. She’s just not confirmable.
The best Johnsen can hope for is that Obama calls in some favors and gets her a job at U of C Law (which, with no disrespect to any IU Law grads out there, would be a major step up for her).
It’s unfortunate, but legal academics who are rigorous and even-handed in their scholarship leave a fat paper trail for those on the other side of the ideological spectrum to turn into disingenuous sound-bites.
And yes, Johnsen’s writing on abortion tells us absolutely nothing about her fitness to be head of OLC, which is unquestioned by anyone who is not playing political games. But so what? This is the world that is.
burnspbesq
@dan robinson:
Anne’s point is about the demise of the Kaplan Daily. Those of us who are of a certain age can remember when pieces like Meyerson’s were unremarkable.
Bob K
Thinking back to nominees of the Shrub administration, I really think I would have preferred Harriet Myers over John Roberts OR Samuel Alito.
K. Grant
Just for the fun factor – Obama should nominate Russ Feingold. I would love, love, love listening to/watching republican heads explode as they tried to find a way of filibustering Feingold, even though he voted to confirm Roberts (and articulated on a regular basis that the President had the right to nominate the person they wanted to nominate – file under: elections have consequences).
comrade scott's agenda of rage
@TuiMel:
Or Hispanics. Or Muslims.
Brick Oven Bill
Perhaps judges should not identify themselves as liberal or conservative, but instead simply read and apply the guidance of the Founders.
comrade scott's agenda of rage
@Bob K:
I dunno. She struck me as being another Clarence Thomas which would have meant the same thing in the end in terms of Fat Tony-ish Gilded Age court rulings.
Bob K
Plenty of fun to be had, anyway.
http://wonkette.com/414738/who-will-be-obamas-new-radical-cleric-on-the-supreme-court
Sasha
@burnspbesq:
But after her non-confirmation, it would be easier to confirm a “moderate compared to Johnsen” Diane Wood.
:)
Sasha
@Brick Oven Bill:
Judges don’t, but their judgments (and hence their ideology) are tagged as such.
comrade scott's agenda of rage
@Brick Oven Bill:
Golly gee Beaver, I just heard a conservative dog whistle.
Remember kids, anytime you hear a conservative asshat utter the phrase:
“…simply read and apply the guidance of the Founders.”
What they’re really saying (you can see it in the invisible ink subtitles on the screen):
“Deny equal rights and protections to blacks, women, hispanics, gays, muslims or anybody who’s not a white man”
“Rape and pillage the environment”
“Turn back the corporate clock to 1890”
“Undo everything associated with the New Deal…and Medicaire/Medicaid”
and a few others I’m sure I’m missing.
burnspbesq
@Sasha:
Ah. So the Johnsen Gambit will go down in the annals of Eleventy-Dimensional Chess?
We’ll know soon enough, won’t we?
Sasha
@Short Bus Bully:
Sometimes I think that the nation would have better served with Bork on SCOTUS as anyone that publicly lunatic would have driven the citizenry leftward in response. Scalia sounds reasonable and therefore is more acceptable.
Brick Oven Bill
This is because George Washington and Thomas Jefferson were mean, and Robert Mugabe was intelligent, articulate, and cared about his country. This we learn from comrade scott’s agenda of rage.
El Cid
@comrade scott’s agenda of rage: A whole lot of the Constitution is Un-Constitutional. Things like the 4th Amendment and whatnot. And the Founders are not the real Founders in your “facks” and books, but the Founders in the John Birch Society imagination.
El Cid
Also, libruls all love Robert Mugabe and want to have his babies, because, you know, he’s black, and in Africa, and, um, he’s a dictator or something, so, you know, he’s just like Teddy Kennedy if you think about it.
kay
@Brick Oven Bill:
Perhaps tea baggers could read some US history and thus discover that we have a system based on statutory interpretation and common law, rather than a straight statute scheme. Hence all that fuss about “precedent” that Glenn Beck forgot to put on the ‘ol chalkboard.
The Founders intended that. A lot of them were from England. That’s where they got the idea. Tea baggers should head to France. I think that scheme is more to your liking.
If you’re going to stick around, get it through your thick skulls that we have a common law system, always have, and we intend to keep it.
Brick Oven Bill
The Oath is to support and defend the Constitution of the United States of America kay, not the words of somebody from Harvard Law School, home of:
“I AM DOCTOR AMY BISHOP”.
Amy again, repeatedly smashed the head of a woman at IHOP who would not yield her child’s seat to the Doctor from Harvard. Then she shot a bunch of people.
Regardless, I’m not going anywhere other than to go help a local guy running for office, as it looks like we are going to make it to November. You guys have a nice day.
Uloborus
What I love in discussions of ‘Original Intent’ is that so many people ignore the fact that the beloved Founders squabbled endlessly over what they wanted. Social services, taxes, size of government, state rights, centralization of power, civil rights – all hotly contested issues amongst our leaders during and immediately after the revolution.
So you can pretty much find whatever ‘original intent’ you want.
kay
@Brick Oven Bill:
Bullshit, Bill. You’re all in favor of judge-made law as long as it goes your way. Yours is the familiar refrain of sore losers. We have a common law system, by deliberate and careful design. We follow statutes and case law precedent.
Sell this oversimplified horseshit somewhere else. I’ve been listening to conservatives spout it for 20 years, and, I got news for you, there are plenty of conservative legal scholars who have spent a career learning what you dismiss in two sentences. Despite best efforts, you can’t dumb our system down to a Palin soundbite. You’ll have to put some time and effort in. Let me know what you discover about common law. It won’t fit on a chalkboard.
Uloborus
Well, BoB says he’s gone. Does anybody think there’s any chance this guy isn’t a spoof? He’s so… rambling and disconnected. If he’s real, he seems to have cognitive dysfunction. He lectures endlessly about things that have nothing to do with the point he’s trying to make, and his arguments don’t really lead anywhere and aren’t relevant to each other. It’s mostly just wandering philosophy (IE, playing with words with no meaning or logic) or name dropping someone he thinks is A Bad Person as if a vague connection to liberal causes invalidates those liberal causes.
dr. bloor
@Brick Oven Bill:
Dr. Bishop was affiliated with the School of Medicine, not the Law School. The Law School harbors miscreants like Charles Ogletree, the attorney who represented some nasty Negro named Henry when he caused a commotion by defending his civil rights from being abused by the local constabulary.
Chyron HR
@Uloborus:
Yes. We call people like that “Republicans”.
kay
@Brick Oven Bill:
I don’t really understand this complaint, either. Tea baggers resent that judicial nominees are lawyers? This is somehow “elitist”? Are all law schools indicative of an ignorance of law, or just Harvard Law School? That’s unexpected and a unique way of looking at the world! See, I might have said the opposite.
Where do teabaggers look when you they go to hire a plumber? A travel agency, maybe? Just make random calls and hope to find a person who knows something about plumbing?
Nick
@Brick Oven Bill:
Which nowadays is considered liberal.
Lurking Canadian
I would love, love, love listening to/watching republican heads explode as they tried to find a way of filibustering Feingold
Do they need a reason? I mean, I know it would be rank hypocrisy for them to filibuster a nomination to the Supreme Court after all their ranting about up-or-down votes during the Bush years, but we know they have no aversion to rank hypocrisy and we also know the media won’t point it out and will accuse the Democrats of being “too partisan” and “poisoning the National discourse” if the Democrats point it out.
Does Obama have any chance to get a nominee through who is not completely approved by the Republican National Committee and Rush Limbaugh? Does he have any weapons in this fight, other than shame, which we know doesn’t work?
Cent News
Either it were Bush’s Administration, results would be the same. Judgments are affected but not to the extent that influence the law enforcement in the state. However, Hillary Clinton would be a rock-star. :)
Uloborus
@Lurking Canadian:
As far as I can tell, he has two. One is time. Supreme court nominations are high profile. Consider how the Sotomayor nomination was all over television. Obama’s got 6 years to get one or more supreme court nominees approved, and the longer this drags out, the worse the GOP looks. They don’t have shame. They DO have an uncomfortable awareness that incumbents of both stripes are going to be unpopular in November, and obstructionism enhances anti-incumbent sentiment.
Two, there’ve been feelers going out that some of the Republican senators have realized they’re in a no-win game. I mean, they are. Obama laid it out pretty plain at the QA. They can either be primaried out for not being teabagger enough, or face steeper and steeper challenges in general elections as moderates desert them for siding with obvious lunatics. (The ‘obvious’ part is important.) Oh, and be primaried out anyway, because teabaggers are unsatisfiable. So I understand some of them have made noises about actually wanting to cooperate and get things done.
Does anyone know if there’s further word on that?
NobodySpecial
@kay:
They’ve fallen in love with the Louis L’Amour trope of the wandering cowboy who spent a winter reading Blackstone’s book and became a gee-whiz symbol of American freedom! Trained lawyers in his books are almost always the bad guys.
Mark S.
What is BOB’s obsession with Mugabe? Is there some corner of the liberal blogosphere that thinks Mugabe is teh awesome?
Mnemosyne
@Mark S.:
Mugabe is confiscating the property of white people in Zimbabwe and giving it to black people. Obama is black. Therefore, Obama is planning to confiscate the property of white people in the US and give it to black people.
I wish I were joking, but that is the actual conspiracy theory.
TenguPhule
Penis envy.
Brien Jackson
@Sasha:
We got Thomas, and that didn’t do it.
kay
@NobodySpecial:
Is that what it is? Funny, I just thought it was the arrogance of teabaggers thinking they can do everyone’s job, after a 15 minute chalk-talk training session with Glenn Beck.
Everything’s EASY!
You name it, and teabaggers are better at it than the actual slogging-away practitioners. They’re experts in everything. Education, law, medicine, economics, science. If you don’t know that, they’ll scream at you until you submit.
Well, not spelling. Clearly they suck at spelling.
Sydney Lawyer
I am not sure if the literal approach to the interpretation of the constitution is entirely the best one. If all aspects of the constitution were taken entirely literally, there would be problems which can result from the fact that the document was written over 250 years ago for a society that was vastly different from the America that exists today. Interpreting the constitution using a contemporary context is an entirely valid method of jurisprudence and allows the constitution to remain relevant to the society to which we live in today.
Sasha
@Brien Jackson:
Yeah, but Thomas is keeps his yap shut. I woudn’t see Bork doing that.