Wednesday, January 11, 2006
# Posted 11:38 PM by Ariel David Adesnik
I've been thinking that this analysis should also be applied to the Democrats' position on Alito and on the Supreme Court in general. The Republicans have a very brief and very simple definition of what makes a good justice: self-restraint and a firm loyalty to the original meaning of the constitution.
But what do the Democrats have? If you listen to the Sunday morning talk shows, the first point that comes up is almost always abortion -- or to put it euphemistically, "privacy".
Thanks to the wiretapping business, the Democrats are also talking now about the Court's willingness to hold back the executive. But would they have focused all that much on this issue one year ago? Or five? Or ten? I'm not saying that Democrats are wrong to focus on it now, but it clearly isn't a foundational element of their approach to the Court.
Now, I guess this would be a good time to state for the record how little I know about constitutional law. But in a way, that is precisely the point. The Democrats need some ideas that make sense to those who aren't experts.
Sometimes I hear about treating the Constitution as a living document. But that seems like an argument for change without specifiying at all what kind of change. I'm guessing that Clarence Thomas' disregard for stare decisis is not what the living document folks have in mind.
More importantly in terms of politics, I haven't heard any brand-name Democrats mention the living document approach or any other. A few months ago, I tried to get a handle on Stephen Breyer's doctrine of "active liberty", but didn't get very far. And again, I haven't heard any liberals other than Breyer talk about it.
If you think I've missed something here and there is a unifying thread to the liberal stand on Alito, let me know. (6) opinions -- Add your opinion
Well, it's clear what the unifying thread is on Alito specifically: obstructionism. But that's not really related to the rest of your post.
Given that Alito and his ilk also treat the Constitution as a "living, breathing document," I guess I'm not too sure what the alternative is supposed to be.
I agree that the Democrats need a simple pitch, but they also need one that actually reflects what they believe. The problem with the Republican pitch is that it doesn't reflect what many Republicans actually want in justices. So, how about some productive thoughts about the possibilities?
There was a good - and comprehensible - discussion of Breyer's doctrine in the New York Review of Books within the last six months. It struck me as "too cute by half," but so do "strict constructionism" and "originalism."
I agree with Daniel.
While it's clear to me that "self-restraint and a firm loyalty to the original meaning of the constitution" is the rhetoric that Repubublicans use to talk about their (potential) judicial appointments it seems that this language is, in an almost excruciatingly obvious way, divorced from what justices actually do.
Put another way. The Republican language is neither particularly useful for predictive purposes (it often doesn't help in understanding how a justice will decide a particular case) nor is it particularly useful for descriptive purposes (it's hard to understand 'original intent' as having any direct relevance on problems that could not possibly have been forseen by the founders).
The Democrats want to defend Roe, but even those who support the right to have an abortion understand that a right to privacy based on Griswold is not a firm foundation. Ironically, Roe might have undermined the ratification of the Equal Rights Amendment as much as anything else. If the ERA had become the 27th Amendment to the Constitution, then the right to have an abortion might have been tied to the ERA and now really be "settled law."
Instead, the Supreme Court jumped the gun ahead of public opinion, threw out dozens of longstanding state laws, hijacked the definition of life out from the states, and thereby crippled ratification of the ERA.
Now Roe is going to be thrown out too, probably not with a bang, but a whimper. Roe will go the way of Lochner.
Intent of the framers needs to be replaced with the more english model of Common Law precedent. They should look for a judge who uses this model. It makes the law more progressive and germane. Clearly cases like Roe cannot be subject to intent of the framers. Hell the right to privacy isn't even in the Constitution per se its been created over time.
The whole process of judicial review was established by the Supreme Court and is as best I know one of the longest running precedents the court ever set.
David remarks he knows little about Constitutional law, but nobody who has watched for three days can say the same of Judge Alito, who is not only erudite but also has the memory of an elephant. Clearly this was an inspired nomination. Only a fringe zelot could vote against him. I think Alito will make the most of his opportunity, and leave footprints in the sands of time.Post a Comment