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Saturday, April 01, 2006 

A Loss for Words

How Appealing had a link to an interesting article by Dahlia Lithwick. Lithwick is one of the legal writers for Slate. While I rarely (okay, never) agree with her opinions about the law and the Supreme Court, she's an excellent writer. This article, while kind of silly, highlights an important issue concerning Supreme Court nominees like Roberts and Alito: the Democrats have no clue how to stop them.

It's a word game. It's a label game. The Democrats are 0-2 so far. Here's what happened with Roberts...
First they probed the "state of the judicial heart." Like a team of cardiological residents, they took turns inquiring whether the nominee had a heart and where he stored it.
...
Roberts's cogent response-It's my job to call balls and strikes, not to pitch or bat-sounded both simple and principled in response to the liberal hand-wringing.
And here's what happened with Alito...
Again, they took turns pressing the nominee on whether he saw it as his judicial role to make cases come out fairly for the poor and underprivileged, regardless of the law. And again their quarry struck a more compelling note: I don't bend and twist the law to make it come out in favor of anyone. I neutrally apply the law, and let the chips fall where they may.
The Democrats knew that they couldn't get away with an outright demonization, as they did with Robert Bork. They had to try these two avenues, and they failed. They were flustered. They were floundering. All one had to do was watch the coverage of the Judiciary Committee to see Roberts and Alito running circles around these attacks.

Lithwick makes the following analysis of the situation...
Words failed them, I suggest, because no words seem to suffice; there is no phrase or theory for what liberals seek in a jurist. The rhetoric of a "living Constitution" is in decline. What stands in its stead is either the "judge from the heart" principle or the ambiguous mandate to place a finger on the scale for the "little guy," regardless of the outcome compelled by the law itself. No wonder the country is at war with judicial "activists." The senators make them sound just awful.
I honestly think that they lost the debate on judges (which I claim with more than a bit of bias) for the near future. People are uncomfortable with the idea of judges being agents of social change, as they had been in the past. Slowly but surely, the country has drifted away from that old way. We want our judges to act like judges, not politicians. We want our legislatures to craft public policy, not our courtrooms. I can't think of a person who embodies that view more than Chief Justice Roberts.

The most interesting part about the article isn't the fairly humorous "how would a public relations firm help the liberals" bit. The most interesting part is that Lithwick doesn't have a definitive answer to her question. She closes with this...
I don't care what they call it! the boss would shout as the spiky-haired guy checked his cell phone. Progressives need to figure out what they want in a judge, and give it a name! They can call it "play nice" or "repair the world" or "level the playing field." But when the next confirmation comes along, there needs to be a word for what liberal judges do.
I know her examples are just brainstormed ideas that aren't meant seriously, but let's look at them anyway. "Play nice" sounds way too much like a parental thing, and I don't know anyone who looks at Justice Souter as a father figure. "Repair the world" is just Earl Warren Part 2, and that'll be a hard sell these days. "Level the playing field" is just the look-out-for-the-little-guy thing that they used against Alito.

She can't come up with a good answer. Regardless of my ideological differences with her, I will vouch for Lithwick's knowledge of the judiciary anytime. It's not a matter of not being able to come up with an answer. Gradually, the public has been growing supportive of more conservative (judicially) judges. Say what you will about him, but Stephen Breyer is no William Douglas. The only thing that can stop a Supreme Court nominee like Roberts or Alito is something damning (very controversial writings, a horrible committee performance, a real ethics scandal, etc.). You can't come up with some set of magic words that will stop judges like Roberts and Alito.

obviously i want to agree with you about the seeming tide of the american society regarding its view of the judiciary, but i guess my irish-catholic character won't let me declare that small victory yet. there still seems to be such a stench of american liberalism in academia and all levels of politics. granted, futile or hollow attempts behind liberal arguments like you describe are better than cogent and intelligently forceful ideological movements of the left any day. i guess the american liberalism proponents are just too loud for my ears?

The liberal voices are still there and as powerful as ever in places like higher education and DC/Madison politics. They still have a lot of support and will still get votes. That's a political reality and probably won't go anywhere soon. But the rules of the game change when we start talking about judges.

I think that the weakness and ultimately fatal flaw of the Left in regards to the judiciary is that all of their arguments are results-oriented. It's all output. It's got nothing to do with process. That's why Lithwick couldn't put a catchy name on it.

The argument that "if Alito's reading of X statute prevails (even if it is a strict, textually based reading), groups A, B, and C will be hurt", just doesn't care weight. The response of the pulbic is "well, if we don't like it, we can pass a new law. We don't need judges making that decision for us."

The country has shifted to embrace the legislative branch as the legitimate arena for policy decisions. People generally don't want these debates, especially on social issues, to unfold in the courts. The only time that a group wants the courts to make the call is when they can't get their policy enacted through the democratic process.

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