by publius
She's in. So what exactly are the political implications of the debate we just saw? To me, it seems like a mixed bag.
Ed Kilgore thinks it's "lose-lose" for the GOP. On the one hand, he argues that the GOP's opposition will hurt them with Latinos, an increasingly large and important demographic. At the same time, though, the GOP defections will annoy the base. Thus, lose-lose.
And I agree with all that. As a matter of future voting trends, the GOP's opposition will solidify Democratic loyalties within the Latino community (and will solidify an otherwise diverse, non-unified voting bloc).
But it's not all roses for Democrats. In fact, what concerns me about the Sotomayor debate was its defensiveness. Progressive jurisprudence didn't exactly come away a winner. Just the opposite, in fact. Sotomayor ran away from it, as did many of the legislators defending her.
What bugged me most was the whole "she believes in the rule of law"/"she won't be an empathizing activist" business that we heard 1.2 million times. The whole thing seemed to have an implied "she's not like the dirty hippie liberal judges we read about."
Abstract legal debates are fun and all, but it's important to be able to translate those views to the public. To me, conservatives have simply done a better job translating their views to the non-legally trained.
That's why the defensiveness was a problem. It vindicated conservative narratives about law to the public. The conceit is that conservatives interpret, liberals are activist. Conservatives have blind statue-esque objectivity, while liberals go crazy with bench legislating.
No judge can be purely objective, particularly at that level. Every judge considers policy preferences when the law is indeterminate. What the public needs to know, then, is how progressive and conservative judges make decisions in these contexts. And progressives shouldn't apologize for the values and "empathy" they bring to the bench. I mean, that's why Obama appoints progressive judges, and Bush appoints conservative ones.
More broadly, it doesn't help democratic decision-making to hide the truth of what's at stake — to treat every Court nomination as a elaborate Kabuki dance. Even worse for Dems, though, the Kabuki dance takes place within a narrative that implicitly discredits progressives.
Progressives just need to get better at telling the public what they think the law should be — at translating their views for public consumption. The framing and terms of the Sotomayor debate shows us that we have a long way to go on this front.
Isn’t it a bit much to expect a bold defense of progressive jurisprudence when the nominee is a centrist?
Maybe a more significant change would be to have an actually progressive SCOTUS nominee.
Of course, Sotomayor’s centrism reflects the President’s centrism, so I fear that’s unlikely at least for the next 4-8 years.
“Isn’t it a bit much to expect a bold defense of progressive jurisprudence when the nominee is a centrist?”
If the nominee had defended the speeches she had given, wouldn’t that have been enough? Hopefully she will regain her wise Latina persona once sworn into office.
“Sotomayor’s centrism reflects the President’s centrism”,
Obama seems to me to be a politician who calculates what is actually possible to achieve. I still have faith to trust his long term game plan. Would the “progressive” nominee have been confirmed? If so, after a bruising fight of how many months? Obama is like a general fighting a war on many fronts at the same time. He is husbanding his troops, taking small victories. If the centre of gravity moves left, i expect him to move with it. or maybe I should say only if the centre of gravity moves left, will I expect him to move with it.
Not to forget that SCOTUS isn’t everything.
Obama will have the chance to replace scores of appellate court etc. judges that hear and decide much more cases. Let’s see how he does there.
Of course she was defensive: If ‘progressive’ jurisprudence was popular, you wouldn’t need it, because the popularity would result in ‘progressive’ legislation which conservative jurisprudence would interpret to your liking.
Progressive jurisprudence is only needed where it IS unpopular. It’s a way of cramming ‘progressive’ politics down peoples’ throats where real politics won’t do the trick.
In fact, what concerns me about the Sotomayor debate was its defensiveness.
Being a Democrat means always having to say you’re sorry.
This is true up to a point, but (and Dahlia Lithwick’s framing annoyed me here) only up to a point.
Many senators promoted a progressive view of the courts and/or a criticism of the Roberts Court. This has to be emphasized and promoted as a model. Senators Whitehouse, Franken, Specter, Cardin, et. al. all had a part in this. They forcefully promoted a progressive vision.
Other senators did as well. Durbin repeatedly raised liberal principles, including rights of defendants. Feinstein defended abortion rights. Feingold the importance of limits on executive power. And, the overall idea of diversity was promoted by her very nomination.
The she didn’t follow the “rule of law” and “empathy” thing was a lot of b.s. But, the over the top nature of the Republican reply to me might have been on some level counterproductive for them.* Again, some senators did reference how her experiences and perspective will be helpful. I think many people deep down realize this is obvious.
I’d add the ‘mainstream’ thing is a bit lame too. Reminds me of a sci fi story where everyone had to be average. But, let’s also focus on the positives. Certain senators led the way.
* A ‘cry wolf’ effect might make their criticisms next time around seem lame with the proviso each nomination is to sell (yes) a different nominee. The framing is different for a Souter or Thomas, for instance.
If ‘progressive’ jurisprudence was popular, you wouldn’t need it, because the popularity would result in ‘progressive’ legislation which conservative jurisprudence would interpret to your liking.
Insert joke about the economist and the $20 on the sidewalk here.
See also conservative “jurisprudence” in the current court resulting in interpreting progressive legislation to mean the exact opposite of what was intended.
But nice try. ::: gives Brett a cookie :::
brett:
Your statement may be true in theory, but what we’re seeing on the court right now isn’t always conservatism – it’s often ideological fidelity dressed up as originalism.
Again, ok in theory. But sometimes it’s the job of the SC to cram things down people’s throats when those things are the rights and principles enumerated in the constitution. I don’t want to get into a discussion about which cases cross the line into activism, but when every single decision that doesn’t reinforce a particular political end or ideology is criticized as activism, the objectivity of the critic has to measured.
Obama seems to me to be a politician who calculates what is actually possible to achieve.
Yes. But what evidence do you have that Obama has a particularly progressive vision of jurisprudence? Unlike most presidents, Obama has a long involvement with constitutional law and, from everything I’ve read, he is in fact a centrist.
I agree that Obama has a strong pragmatic streak. But in this case I see little reason–beyond wishful thinking–to think that he’d want anyone substantially to Sotomayor’s left on the court, even if he thought he could put her there. Certainly progressives in the Senate and in the public at large aren’t providing any leftward pressure (compare and contrast to conservative responses to the Harriet Miers nomination).
One final thought about the political costs of naming an actual progressive: it’s hard to imagine a more favorable political situation for a progressive nominee. The Senate is overwhelmingly Democratic. And, yes, Democrat≠progressive, but unless we experience some sort of sea change in American politics, the maximally favorable Senate for the Democratic Party is, in effect, the maximally favorable Senate for progressives (sad as that is to admit). In addition, the retiring justice was from the Court’s “left,” thus eliminating the (entirely bogus) “maintaining the balance” argument that the GOP will have in its arsenal if one of the Court’s right-wing goes. So to the extent that this was Obama making a political calculation, there is practically no chance that that calculation will improve for a potential progressive nominee in the future.
I don’t think progressive jurisprudence is popular which is why you don’t see many people trying to defend it in public.
People like the idea of the law as a thing that can be relied on as a structure. Progressive jurisprudence is all about undermining the structural reliability of the law and replacing it with less reliable things like ‘social justice’ which make more sense as considerations in the legislature.
Thre problem with progressive jurisprudence is that it basically boils down to even in theory is ‘things that we want to have happen’.
Now I’m sure that many will argue that conservative jurisprudence boils down to the same thing. But in theory it doesn’t have to. And that is the difference. The theory is about legal precepts you can rely on. The theory is about the changes happening through the proper channels. The theory is about taking the idea of amendments seriously and leaving the Constitution ‘alone’ until then. The theory is that different branches have different functions and it isn’t the function of the judiciary to engineer radical social change because it is the least democratic branch.
You can argue that the theory doesn’t match the reality. But it is a very appealing formulation about what the proper role of the judiciary is.
Progressive jurisprudence doesn’t have any of that appeal to safety. It lets judges run wild, and doesn’t have obvious limits. It just tends to let judges do what they want. It is difficult to imagine policy issues under progressive jurisprudence where a Supreme Court justice would say “this policy sucks, and has horrible outcomes, but is nonetheless Constitutional”. That rarely happens on the conservative side (we’ve seen Thomas do it for example), but almost never on the liberal side (I honestly can’t remember the last time I saw it).
The problem with progressive jurisprudence is that it grounds itself only in political judgment. At that point it invites the question “why should we let judges make unreviewable judgments if they are only political judgments”. The conceit of judicial review is that it is not a political judgment. That is why we let unelected judges do it. If it is all just a political judgment we might as well stop listening to them–they have no more a monopoly on political judgment than anyone else, and a lot less democratic legitimacy.
Sebastian’s Alice in Wonderland view of “progressive” and “conservative” jurisprudence is interesting reading, but it doesn’t make it less Humpty Dumpty like.
“Doesn’t match reality” … that sounds about right.
There is always a difference between what we aspire to and what we do. But if you take the legal realist position–that legal outcomes, especially at the Supreme Court level, are essentially political outcomes–it isn’t at all clear why we should have judicial review at all.
I’m not arguing to dump judicial review—that would be a very radical argument. I’m arguing that judicial review loses its reason for being when you argue that Supreme Court decisions are essentially political decisions made by judges (the progressive jurisprudence view).
” But what evidence do you have that Obama has a particularly progressive vision of jurisprudence?”
his Empathy standard, (which clearly the “conservative “Justices seem to lack)- often the real issue is which facts to emphasize, which facts to ignore- that determines outcome. Greater diversity will be to some extent self-corrective.
With an increasing number of women on the Court the blindness to women’s perspective will surely narrow. I expect that at least 1 out of Obama’s next two appointments will be women.
” The theory is about legal precepts you can rely on. ”
So that settled law can be overturned through a newly discovered vision of Originalism?- which only gets applied when conservative Justices like the result.
The rule of law has been under attack by the conservative wing of the Supreme Court.
Now you know that Roberts and friends will always vote for the corporation, etc. One of the chief defences is stare decisis. I think the new Justice will be a good defenceman.
“The theory is that different branches have different functions and it isn’t the function of the judiciary to engineer radical social change because it is the least democratic branch.”
And this is fine, except when the other branches are playing with rules structured to prevent democratic change – voting rights, legislative apportionment. Or when the Supreme Court contributed to the problem in the first place- Plessy v Ferguson.
Perhaps when Obama retires he can join a commission to rewrite the US constitution and bring it into the 20th century, if not the 21st.
Ben,
Obama doesn’t think useful progressive change is going to come through the courts. On most issues, I’m pretty sure he’s right. Court-ordered social programs are a disaster.
“Perhaps when Obama retires he can join a commission to rewrite the US constitution and bring it into the 20th century, if not the 21st.”
Why? Can’t progressive judges do that?
“Court-ordered social programs are a disaster.”
For example, (correct me if my memory is wrong). Brown was a case in which a little girl was being bussed to a distant school because the neighbourhood school was segregated and wouldn’t take her. A victory that allowed a child to attend the school where she lived and not be bussed was transformed into monumental busing of school aged children.
“Why? Can’t progressive judges do that?”
No, that isn’t the job of judges. Nor is it their job to try to turn the clock back.
Isn’t “legal realism” just the recognition that judges’ background and life experience affect the facts/law they find important, and therefore how they decide cases?
Wasn’t it the application to the legal system of a value-free approach to social sciences? descriptive rather than prescriptive?
There were different “legal realisms” and they said different things. No one disputes that judges, especially American judges, are descriptively affected by their background and ideology. The more radical position is that they SHOULD be so affected. I think Posner thinks this on the right, but it is generally believed on the left.
Obama doesn’t think useful progressive change is going to come through the courts. On most issues, I’m pretty sure he’s right. Court-ordered social programs are a disaster.
I disagree about this as a general principle. Certain kinds of progressive change have been brought about very effectively and non-disastrously through the courts. The Warren court, of course, provides many examples: Loving, Brown, and Gideon are three of them (there are many more of course). I don’t think a good case can be made that the progressive changes brought about by these cases would have better occurred in the “political branches.”
I even think that Roe is a great example of progressive change brought about through the courts.
Where I agree with you is that Obama agrees with you, not me.
More’s the pity.
I’m arguing that judicial review loses its reason for being when you argue that Supreme Court decisions are essentially political decisions made by judges (the progressive jurisprudence view).
Right. Because deciding, for example, as Clarence Thomas did, that allowing guards to beat prisoners does not run afoul of the 8th Amendment, is not in any way a political decision.
“Perhaps when Obama retires he can join a commission to rewrite the US constitution and bring it into the 20th century, if not the 21st.”
Maybe, for instance, he can help promote a Constitution with an income tax, direct election of senators, the right to vote for women, a shorter lame duck period than in 1861, no poll taxes, some means for DC voters to have a role in presidential elections, more clear rules on dealing with presidential incapacity, and voting rights for those who can be drafted.
Or, maybe, one that protects equal protection, full stop, not “equal protection for blacks” or “equal protection as understood in 1870.” Oh wait, it is the libs who miss the part where it says that, not having the secret decoder ring yet.
BTW, as to “background and ideology,” so no conservatives think “background” can legitimate (as compared to realistically) “affect” judging? This in fact is a “radical” position to take?
I put aside that conservative judges SAID their background did affect it, and did not imply this was a bad thing. I guess they might have been b.s.-ing. But, now we are saying it is mainly ‘left’ or ‘radical’ to suggest that experiences in some fashion can helpfully (or neutrally) help people to judge.
We think this in the case of jurors, who “judge” cases. That is why we like a cross section and have unanimity rules in part to have various views and experiences to factor in. This is deemed helpful and how judging cases works. But, for judges, this is a “radical” approach.
Down the rabbit hole once again.
Phil,
When you say “tu quoque” against Thomas, you are conceding his larger intellectual point. If he is acting politically, and therefore wrongly, then you are accepting that legality is inconsistent with politics. In the law schools, progressive professors really are saying the opposite.
Ben,
In all your examples, what the SCOTUS did was replace traditional rules deriving from the law of status with formally neutral rules based on contract. I grant that the courts are perfectly fine at doing that. What they’re not fine at doing is creating new social programs, which is where Obama thinks the progressive action is.
(The exception is Gideon, which was something of an attempt to create a social program, and which was a social-policy disaster. But that’s a bigger discussion.)
creating new social programs
What are we talking about here?
Gideon, e.g., is not really an exception. It did not require public defender offices. It said, and if the state wants to provide funds so people can do it simply by “contract” why not?, the right to counsel should be provided equally, including to those who could not pay on their own.
[This was already deemed necessary for certain types of cases for some time.]
The neutral rules you accept also in practice radically change social institutions in various respects, resulting in new social programs, programs that are in part necessary for a credible protection of the new rules.
“Right. Because deciding, for example, as Clarence Thomas did, that allowing guards to beat prisoners does not run afoul of the 8th Amendment, is not in any way a political decision.”
But it can’t be a WRONG political decision because the Constitution is only what the Supreme Court says it is, right?
If the state funds a fee-for-service system, that’s a social program.
Courts are bad at social programs because they have neither the competence nor legitimacy to manage budgets.
Courts can much more easily abolish legal distinctions.
“I mean, that’s why Obama appoints progressive judges”
Is this true? How many federal judges has Obama actually appointed yet, how many to courts of appeal, and how progressive are they, and by what measure?
To the best of my knowledge, the answers are: 0, 0, and therefore the two remaining questions remain unanswered.
So I find this assertion about Obama’s judicial appointments a tad questionable, publius.
Obama has nominated seven people to courts of appeal, so far, if the cited list isn’t incorrect, but none have yet been appointed to the bench, or even voted upon by the Senate.
He hasn’t even nominated anyone as an ordinary Federal District Judge, let alone appointed anyone, has he?
On the appellate nominations, can you give us some cites on how “progressive” these nominees are, and what measures we’re, um, judging them by?
Because I’d be thrilled to know that Obama is even nominating progressives, so I’d really like to know more about this.
For instance, is David Hamilton a “progressive,” with this on his record?
How about this?
Is this “progressive”?
I could go through the other judges listed, but I figured you were the legal professor blogger, and I shouldn’t write your post for you, but instead ask you to inform us more about the nominees and just how “progressive” they are, and by what standards. Thanks, if so.
And possibly it would be good to perhaps correct the claim that Obama has “appointed” federal judges of any kind besides Sotomayor, as yet?
Anna Blume:
But history says it isn’t:
Brett: “It’s a way of cramming ‘progressive’ politics down peoples’ throats where real politics won’t do the trick.”
Alternatively, when people of Brett’s persuasion don’t like popular legislation, they claim it’s clearly un-Constitutional, regardless of what the courts say. Funny how it works out that such preferences are always objectively correct, one way or another.
“Court-ordered social programs are a disaster.”
Could we be, could you be, more specific, please?
“Obama doesn’t think useful progressive change is going to come through the courts. On most issues, I’m pretty sure he’s right.”
Which of the following would you say were useful, and which unuseful?
Brown v. Mississippi
Gideon v. Wainwright
Escobedo v. Illinois
Miranda v. Arizona
Loving v. Virginia
Jones v. Alfred H. Mayer Co.
Brandenburg v. Ohio
New York Times v. United States
Miller v. California
Abington School District v. Schempp
Kitzmiller v. Dover Area School District
Frontiero v. Richardson
United States v. Virginia
Lawrence v. Texas
Griswold v. Connecticut
Mapp v. Ohio
Let’s start with those. Please let me know if you need links, if you’re unfamiliar with any of these cases.
Thanks.
Gary, why would you say that Hamilton’s record isn’t progressive? He’s protecting the children for Pete’s sake, and willing to avoid the silly conservative interpretations of the First Amendment and overly narrow procedural rules to get to the heart of the justice of the matter! Why isn’t that progressive?
Only mild snark intended. But really, why isn’t that progressive? Isn’t he laudably ignoring the overly restrictive text of the 1st Amendment to more capably allow government involvement in important matters?
Gary,
You’re asking for more than I can provide while procrastinating at work. The key distinction, returning to Marx, is between bourgeois-democratic change and social-democratic change. The courts are fine at accomplishing the former, and such change may be considered progressive, but they are really lousy at the latter.
Hamilton’s rulings both make sense to me, although I can’t claim to be an arbiter of what is progressive. I can say they’d be completely unexceptionable in Canada, which some consider a progressive place.
“But really, why isn’t that progressive?”
It ain’t “progress” I want any part of.
In particular, in response to Pithlord, and noting that I haven’t read the decision, or anything more about the case than what I quoted, that I couldn’t, on the face of what’s presented, disagree more strongly with this idea:
I see absolutely no difference between information presented in “books” or “words” or “sounds” or “records” or “CDs” or “videos” or “DVDs” or “video games,” or any other formats or media that present information, and I consider that the First Amendment prevents any interference with the right of any person to access, publish, or provide access to, any information that doesn’t fall under specific limited exceptions such as libel, incitement to riot, or provable strong chance of harm to people (such as publishing information on troop movements in the field during war).
(And I’m aware of how fraught the arguments are, but I don’t agree with exceptions for pornography, and I don’t even agree with, vile as it is, exceptions for child pornography, since we already have laws against child abuse, rape, statutory rape, and so on, that cover any relevant harm to any actual children, and punishing those who commit such harm — but I don’t want to go off on a side-argument about that specific subissue, if I can possibly avoid it, as it’s a distraction to the primary issues.)
I’m not aware that anywhere in the U.S. there’s a law promulgated, or allowed by courts for any government contained within the U.S., to otherwise make it illegal for children to read a book, or view a movie, or play a game, without parental permission.
We have voluntary agreements by private associations to attempt to limit such access, or to attempt to limit signatories to such agreements, of some materials to minors. That’s fine; I’m not for passing laws forbidding anyone from voluntarily withholding their property from anyone, either. (Specifically, for instance, dumb as I think their decisions might be, the MPAA has all the right in the world to voluntarily rate films, and film theaters have all the right in the world to abide by those standards or ignore them; they’re not laws.)
I think the First Amendment applies to minors as much as it applies to anyone else, and I don’t want government making it illegal for kids to read books, listen to music, or play games, without permission from their parents. That should be up to parents and kids to deal with on their own, in my view, and I want libraries and stores and individuals to be free to give or sell kids all the books and games and music they want, because I believe kids have legal rights, and should have legal rights, no matter that the courts have more and more disagreed with me on this topic.
If parents want to teach their kids their values, great; I don’t want them using the local or any other government or governmental agency to enforce their values on their kids as regards what kids can read, listen to, or as regards playing video games.
Those are my own values. Call them whatever you like; I’m not fussy.
If the state funds a fee-for-service system, that’s a social program.
Courts are bad at social programs because they have neither the competence nor legitimacy to manage budgets.
If so, a myriad of procedural due process requirements applied to the states also are “social programs.” For instance, juries cost money. Duncan v. Louisiana therefore was a “social program.”
Courts don’t “manage” the budgets of public defender offices. OTOH, if the state manages a budget badly, such as giving more funds to white schools, they might run counter to constitutional requirements. Courts would enforce them. They have the ‘legitimacy’ to do this to the degree protecting equality and due process is one of their core functions.
Again, any number of cases have a social program flavor. Plessy v. Ferguson, e.g., required some basic equality. This required some expenditure of public funds in various cases. Constitutional protections in various cases require expenditure of funds.
Sebastian, let’s cut to the chase: Why don’t you explain what you think Thomas (for example) is doing when he reaches the conclusion he did in his dissent in Hudson v. McMillian, or in Safford Unified School District v. Redding, (for example), and how it differs from what you claim “progressive jurisprudence” is.
For bonus points, explain why Scalia and Thomas are the justices most likely to substitute their own judgement for that of the legislative branch, voting a combined 65 times as of 2006 to overturn Federal laws.
Gary,
I can tell you that the idea that parents should have no say over what their kids see is way more common in the US of A than they would be in Canada or Europe, although I imagine it is a pretty fringe view anywhere.
Phil,
Why aren’t state legislatures the voice of the people? How is saying something is outside the competence of the federal government and should be left to the states substituting one’s own judgment?
“How is saying something is outside the competence of the federal government and should be left to the states substituting one’s own judgment?”
When it comes to S/T, that only helps you so much. They repeatedly also (Thomas somewhat more) didn’t trust the competence of locals in areas such as land management, affirmative action plans, school choice, desire to have stricter separation of church/state, and so forth.
So, Sebastian’s claim that “progressives” are the ones that can’t say “this policy sucks, and has horrible outcomes, but is nonetheless Constitutional” is a tad selective.
Like Sen. Lindsey Graham complaining about Democrats holding up some of Bush’s nominees w/o talking about how Republicans did so with Clinton this is bad pool. You can be concerned across the board. Fine.
But, selectively doing so is dubious.
“I can tell you that the idea that parents should have no say over what their kids see”
That’s, of course, not at all what I said.
I said that there shouldn’t be a law making it illegal for kids to see something their parents don’t want them to see. I specifically wrote “That should be up to parents and kids to deal with on their own, in my view….”
There’s no issue in this case, American Amusement Mach. Ass’n v. Cottey, limiting parents from setting any damn rules they want. The issue is whether cities can pass laws making it illegal for other parties to give access to kids something with violence in it. This could, for instance, make giving a kid a video-game about the Bible illegal, I point out. Video games aren’t, in fact, different than books, as vehicles for expressing and conveying thoughts and ideas, and they aren’t more dangerous To The Youth than swing dancing or rock music were. This is pure classic moral panic, and a bunch of ignorant fools want to ban video games just as the same types once wanted to protect kids from rock and roll, or otherwise today want to protect them from turning into Satanists by reading Harry Potter.
And, no, I don’t think that selling or giving video games should be criminalized; if you could point out where I was unclear about any of this, I’d find that helpful.
Their statements and proposals on video games, btw, were a primary reason I denounced both Joe Lieberman and Hillary Clinton long before the last presidential campaign, and beat on Diane Feinstein, as well; Democrats are as full of demagoguery with this “protect the children” crap demonizing video games as Republicans are.
Joe: “So, Sebastian’s claim that “progressives” are the ones that can’t say “this policy sucks, and has horrible outcomes, but is nonetheless Constitutional” is a tad selective.”
First, examples where conservative Justices allegedly rule in favor with their politics, and only sometimes rule against their politics doesn’t refute the idea that liberal justices do so all the time. To refute it you would want to show me some times where liberal Justices did so.
Second, you seem to be missing my point entirely. Conservative jurisprudence allows for the idea that the Constitution might actually force you to do something against your political judgment. As such it makes some sense to have judicial review. Progressive jurisprudence really has very few if any limits in that direction.
If the current progressive critique is correct–and the Supreme Court is just all individual politics anyway–what is the argument for judicial review? It isn’t democratic. These judges aren’t so amazingly wise as to overrule the rest of us with merely their individual political judgments. Why have them do that?
Same answer to you Phil.
And your question about substituting their judgment is oddly a sidetrack. If you do believe in judicial review, and the legislature does go beyond the Constitution, the legislature should be overturned.
Gary, I understand that you don’t agree with Hamilton’s rulings. What I don’t understand is why you believe his rulings aren’t in line with being progressive. You can vote to strip away much of the 1st amendment and be perfectly in line with progressive jurisprudence–according to them it doesn’t have independent meaning. It only means what the judges say it means, and he is a judge, and you aren’t a judge. Your opinion on things like “what the 1st amendment really means” is irrelevant. In fact it is an illegitimate question. According to progressive jurisprudence, your statement “I think the First Amendment applies to minors as much as it applies to anyone else, and I don’t want government making it illegal for kids to read books, listen to music, or play games, without permission from their parents.” is nonsensical unless you get enough judges to agree with you.
And even as a matter of pure progressive politics I don’t understand what about Hamilton’s rulings strike you as non-progressive such that you thought he was a good counter-example.
We treat free speech as a much less flexible goal than almost any other Western country. How can you be so sure that taking the 1st amendment seriously is progressive? It seems kind of reactionary really. Clinging to a silly idea more than 200 years old instead of realizing the potential importance of anti-blasphemy laws for multi-cultural harmony? Do you know that the 1st amendment was written by dead white men? Who probably didn’t even realize how important it is to not have magazine portrayals of the prophet?
You may want to direct your sarcasm at guys like Brent Bozell then, Sebastian, as it’s him and your fellow-traveling bluenose conservatives who accuse progressives of wanting to flood society with pornography, violence, profanity and other cultural detritus in the name of free speech. Or has the “liberal Hollywood” meme somehow managed to escape you over the years? You can Google it and everything.
Clinging to a silly idea more than 200 years old instead of realizing the potential importance of anti-blasphemy laws for multi-cultural harmony?
Are you drunk? Because even by your standards this is pretty weak sauce, since you and I both know that it’s nearly invariably evangelical Christians complaining about, say, the War On Christmas and taking Bibles out of schools and Joe Biden taking the lord’s name in vain. If anybody is about to press for anti-blasphemy laws, it would hardly be progressives. And you know it. So save it for an audience who you can fool with this act.
Democrats as prominent as Secretary of State Clinton did the save the children garbage with the 1st amendment, so perhaps you just haven’t been paying attention. She almost won the presidential nomination last year too!
And the argument isn’t about which political views should win in the court, but whether or not political views should win on the court.
“… Joe Biden taking the lord’s name in vain.”
Jesus Christ, what a dipstick.
Sebastian: “And even as a matter of pure progressive politics I don’t understand what about Hamilton’s rulings strike you as non-progressive such that you thought he was a good counter-example.”
I don’t know how good or not Hamilton is as a counter-example; I don’t know enough about him overall; it was a question; I do know I don’t like that one ruling, as described.
I don’t know how “nonsensical” or not anyone’s opinion is on the Constitution if they’re not a federal judge, but I do agree that their opinion, including my opinion, doesn’t make much practical difference, save to serve as agitation towards influencing public views, which may indirectly affect discussion of judicial nominees, as well as legislation, as well as, when relevant, possible constitutional amendments.
I’m not really all that interested in defining borders or coming up with definitions for what’s “progressive” or “liberal” or “conservative,” myself. In general I try not to be hung up on issues of fine tweaking of definitions, as it’s generally a waste of time in a discussion of larger issues, unless it’s a matter of increasing clarity, which isn’t the same as insisting, or spending a lot of time debating, on One True Definition.
I may have first learned this as a pre-teen, reading endless arguments on what truly defined what was or wasn’t “science fiction.” I lost interest in that category of debate generally some thirty-five years or so ago.
Unlike most presidents, Obama has a long involvement with constitutional law and, from everything I’ve read, he is in fact a centrist.
Based on what I’ve heard from people who’ve actually worked with him and taken classes from him, he likes to hear all sides of the debate — which certainly gives the impression that he is a centrist — but he definitely has a tangible position to the left of that.
Given how the Overton window has been shoved so violently rightward over the years, I’d like to hear more evidence of this “definite” left position.
I believe I remember Obama actually saying that change should not come through the courts, so that claim does not seem to be just a case of mind-reading. But I am too lazy to search for links on that at the moment.
First, examples where conservative Justices allegedly rule in favor with their politics, and only sometimes rule against their politics doesn’t refute the idea that liberal justices do so all the time.
A pox on both their houses approach is fine as far as it goes, but that doesn’t appear to be your approach. You selectively target progressives.
Second, you seem to be missing my point entirely. Conservative jurisprudence allows for the idea that the Constitution might actually force you to do something against your political judgment.
This is “your point.”
As such it makes some sense to have judicial review. Progressive jurisprudence really has very few if any limits in that direction.
Did progressives not support the measure in CA to allow medicinal marijuana? But, Justice Stevens led the progressives to note that federal power allows the feds to ban it.
Perhaps, you recall Stevens also wrote the opinion that upheld the right to sue Bill Clinton while in office, even though “political judgment” was that was a lousy idea.
Progressives, surely Obama, also politically are willing to compromise, even when strict constitutional rules require something. The progressives on the Court repeatedly reject this approach. For instance, Stevens voted against the line item veto legislation.
If the current progressive critique is correct–and the Supreme Court is just all individual politics anyway–what is the argument for judicial review?
I’m sorry, but such cheap strawman is not very impressive. The critique is that ideology, experience, background, etc. influences judgment. It is not “just” that.
It isn’t democratic. These judges aren’t so amazingly wise as to overrule the rest of us with merely their individual political judgments. Why have them do that?
First off, we live in a republic. “I pledge allegiance,” etc. Second, since this is just a tedious strawman, the answer is “they don’t.”
And your question about substituting their judgment is oddly a sidetrack. If you do believe in judicial review, and the legislature does go beyond the Constitution, the legislature should be overturned.
I believe the concern, if sometimes phrased a bit badly, is a type of “let those w/o sin throw the first stone.” IOW, to the degree judges do what you are concerned about, it is the other side that do it more. I find how some phrase it here a bit counterproductive though.
Gary’s discussion of the video game case, btw, underline that “progressive” can mean various things. For instance, some early 20th Century progressives were wary of popular rule and various individual rights that were deemed dangerous to the public good.
Many progressives supported Prohibition, for instance. Others, not so much. So, tossing the word around without nuance is a somewhat problematic thing. I’d say the same thing about “conservative.”
Look at the dissenters in Poe v. Ullman and Olmstead v. U.S. They were both libs and conservatives.
And the argument isn’t about which political views should win in the court, but whether or not political views should win on the court.
That may or may not be the argument, but if it is, it isn’t an argument between conservative jurisprudence and liberal jurisprudence. It’s been demonstrated to you time after time after time, and by much brighter minds than mine, that both the liberal and the conservative justices rule based on political considerations all the time; and that there are many times where the plain text of the Constitution and the language and intent of the statute don’t necessarily lead to a single result, and thus the justices use political considerations — among other criteria — in rendering their judgement.
(And, you know, as long as there’s a big smelly turd like Bush v. Gore sitting there, I don’t see how you could reasonably believe otherwise.)
So, if that is the argument, it’s between you and . . . who, exactly? I mean, if you’re a conservative, I suggest you take up the argument with Scalia and Thomas before you continue finger pointing. And Roberts, for that matter, since he’s pushed back ruling on Citizens United until next term and invited arguments for reasons to overturn McConnell v. FEC and Austin v. Michigan CoC. You going to tell me that that’s not based on political considerations?
It could be based on “Congress shall make no law…” considerations.
It could be. It could be a lot of things. I’ll just follow Occam’s Razor here.
Given how the Overton window has been shoved so violently rightward over the years, I’d like to hear more evidence of this “definite” left position.
The Overton Window is a concept for evaluating the public “legitimacy” of political positions, not a metric for evaluating legal arguments or policy, so I’m not sure what you actually mean by this.
I am telling you that although Obama places value on hearing multiple perspectives, in general his legal thinking is decidedly liberal. It was liberal when he was in law school, and it was liberal when he was teaching — so even if it’s true that the Overton Window has shifted “violently” rightward, then, relatively speaking, Obama is even more liberal now than he was then.
And I am telling you that you can SAY that, but you’re not SHOWING me that.
And I am telling you that you can SAY that, but you’re not SHOWING me that.
No, you’re missing my point. I’m saying that the reason there’s so little evidence of Obama’s position is that he’s intentionally inscrutable — especially since he entered public office.
Keep in mind that this is a guy who taught a class on affirmative action and the 14th Amendment at the University of Chicago, which is known for its conservatism. He supported a liberal ideology despite not wearing it on his sleeve, but he was well-respected anyway.
That sort of environment is a microcosm of the world you describe where the “Overton Window” has shifted rightward — Obama’s strategy (which should be obvious by now) is to advance the ball without presenting any obvious targets. That narrative actually has the advantage of making, you know, sense.
This recurrent criticism that Obama’s somehow not sufficiently liberal because he’s not adequately blatant about it is incoherent — surely you realize that any “evidence of the ‘definite’ leftist position” would only create an opportunity for demagoguery without actually advancing a substantive goal. Why in the world should Obama make empty gestures merely to impress the left? What would be the point?
I would phrase your question in the reverse — what has Obama done to “show” that he’s a conservative or a centrist, as opposed to a pragmatic liberal? It seems to me that if you make a list of his positions, they all point in the same direction, and it’s not even close — perhaps not as strongly as you might personally prefer, but that’s a pretty hollow argument.
I see no reason to think that Obama’s some centrist sleeper agent enacting a nefarious plan to freeze the Overton Window for the remainder of time. Absent a more substantive and less paranoiac line of criticism, I think his actions so far speak much louder than his words here.
“…then, relatively speaking, Obama is even more liberal now than he was then.”
But I’d like Obama to be liberal enough to appoint a justice who is the modern equivalent of a William Brennan, a Thurgood Marshall, a William O. Douglas, an Arthur Goldberg, a Frank Murphy, a Louis Brandeis.
Not someone who is “relatively speaking” now considered a “liberal,” which is to say, someone we used to consider a moderate conservative, or a middle-of-the-road centrist. (Frank Murphy doesn’t get mentioned enough in these discussions; most people have never heard of him, it seems to me.)
The last true liberal appointed to the SCOTUS was Thurgood Marshall, appointed by LBJ on October 2, 1967. Forty-four or more years is too long to keep waiting for something more than a wishy-washy centrist or a single very mild liberal, such as Ruth Bader Ginsburg. (We’ll see how Sotomayor rules.)
Meanwhile, the most conservative justices ever appointed since 1937 have all been on the court in my lifetime, and half of them are still there:
That may be true. I am often more dense than I like to be.
This is a good point in that empty rhetoric and gestures not backed by action are often taken too seriously by political observers.
However, I would point to his nomination of Sotomayor, the handling of intelligence requests from the public, the reluctance to release details of the previous administration’s shadier actions as more indicative of a centrist bent and not of the “more liberal” inclinations of conversations and discussions that the general public is not privvy to.
(Not that I am averse to a more centrist President; I am quite happy to pressure a liberal or centrist President to move left, as I think that a liberal or centrist President would actually heed such pressure).
This is a good point in that empty rhetoric and gestures not backed by action are often taken too seriously by political observers.
That’s a nice backhand, and your point is well taken. 🙂 But “empty rhetoric and gestures not backed by action” is a value judgment, and that’s where we differ. That’s not a neutral statement.
The difficulty here, I think, is that we interpret the symbolism of Obama’s actions differently — you see the lack of demonstrative gestures as evidencing a lack of commitment, and I view it as a political strategy intended to avoid unnecessary exposure. And, admittedly, those two things might not be mutually exclusive. But I think they are matters of interpretation, at least at this point.
Gary, I think you may be unwittingly proving the point you’re arguing against: the President’s nominees are constrained by extant political conditions. FDR was able to nominate liberal justices and change the direction of the Court for decades based on his threat of court packing.
Likewise, Alito and Roberts were essentially the most-conservative Justices that could be pushed through at the time. I disagree with you on Ginsburg — I wouldn’t call her a “mild” liberal by any means. The point is that Court choices are determined primarily by political exigency and only secondarily by predictions of actual outcomes. If any Justice’s voting record could be laid out in advance, no one would ever get confirmed.
Sotomayor might turn out to be a Souter (i.e., ruling contrary to how she was expected to when nominated), but there’s no evidence on that point yet, so I’m not going to speculate on it.
“This recurrent criticism that Obama’s somehow not sufficiently liberal because he’s not adequately blatant about it is incoherent — surely you realize that any “evidence of the ‘definite’ leftist position” would only create an opportunity for demagoguery without actually advancing a substantive goal. Why in the world should Obama make empty gestures merely to impress the left? What would be the point?”
This is a lot of words to ask: “Why would Obama be honest when it doesn’t move his agenda forward?”
Well, because it would be honest.
“Why would Obama be honest when it doesn’t move his agenda forward?”
Well, because it would be honest
“Honesty” from a politician would be such a radical change from what we’re used to that nobody would take it seriously. “Honesty” from a President would be so revolutionary that bewildered conservatives would be plaintively crying: “I want my country back!”
The whole idea of “honesty” as Marty seems to define it would not merely undermine but entirely demolish the advertising business, the sales profession, and the human ritual of courtship. Fie on “honesty”!
–TP
“The point is that Court choices are determined primarily by political exigency and only secondarily by predictions of actual outcomes.”
I agree, and hadn’t realized I was arguing against this idea; I didn’t think I was.
“FDR was able to nominate liberal justices and change the direction of the Court for decades based on his threat of court packing.”
That’s the short-hand myth, but my reading of history suggests that it’s difficult to unpack just how much the “court packing threat” — which we was forced to back down from, of course, and which was a major defeat for Roosevelt, led to any greater ability to appoint liberal judges than he already had through the mandate of the people and the Democratic Congress. Already, Hoover had appointed Cardozo just prior to FDR taking office, beginning the process of liberalizing the court.
As Wikipedia notes:
FDR remained a highly popular president with a huge Democratic majority; he got liberal Justices because they were a popular idea, as were their policies, if you weren’t rich, in which case FDR was a “traitor to his class.”
This is a lot of words to ask: “Why would Obama be honest when it doesn’t move his agenda forward?”
Again, this is a disingenuous rhetorical framing: “Why wouldn’t Obama
be honestshow all his cards after the flop? Does he have something to hide? Does he plan to resort to some sort of base trickery?”In this case “be honest” also means “reveal your game plan to the Republicans,” and forgive me for thinking that’s not exactly a sweet deal.
Sotomayor is not a judicial activist. A 3,000 case history shows that. And that’s why 31 Republicans voted against her.
Roberts and Alito (plus Scalia and Thomas) ARE judical activists. But in the view of Republicans, it’s not judicial activism unless the decision is something they don’t like.
Pathetic.
Joe, “If the current progressive critique is correct–and the Supreme Court is just all individual politics anyway–what is the argument for judicial review?
I’m sorry, but such cheap strawman is not very impressive. The critique is that ideology, experience, background, etc. influences judgment. It is not “just” that.”
Meet Phil the apparently cheap strawman (also meet publius the not so cheap strawman):
Phil, “It’s been demonstrated to you time after time after time, and by much brighter minds than mine, that both the liberal and the conservative justices rule based on political considerations all the time; and that there are many times where the plain text of the Constitution and the language and intent of the statute don’t necessarily lead to a single result, and thus the justices use political considerations — among other criteria — in rendering their judgement.”
The problem is what is that information is used for. If you prove that the Court is just ruling on political considerations all the time, the next question shouldn’t be “how can we pack the court more and more in our favor so we don’t ever have to listen to the other side?”, but “why do we have judicial review again?”
So if you are correct about rulings being based on political considerations, the question is why we should allow it.
So, why should we allow it if it is just another set of political considerations?
“In this case “be honest” also means “reveal your game plan to the Republicans,” and forgive me for thinking that’s not exactly a sweet deal.”
I think he should reveal his “game plan” to America. There is a moment, I believe, where a President needs to cross the line between politics and governing. Too often, they don’t do that until they get reelected, often never.
We hired him to represent us (all of us), his agenda shouldn’t be a secret from any of us.*
*I know this is unreasonably altruistic.