Tuesday, May 10, 2005
At Volokh, a Non-Volokh is criticizing a WaPo piece on the judicial nominations process. I think he is off-base in much of his criticism.
The article (editorial?) claims that the fillibuster suports judicial impartiality.
That could be true if by impartial we mean bland middle of the road acceptable to both sides. It's possible to have partial (in the sense of biased) moderates, and impartial extremists, but it's fair to say there's some correlation. Close enough for WaPo work.
NonVolokh challenges the claim that the court has a middle and right wing, but no left wing. I disagree, with the exception of Ginsberg. Ginsberg, true, is liberal, feminist, female, Democratic, possibly a New Yorker. On the other hand it's a sort of classical liberalism, concerned that women and other receive equal rights under the law. That's a position that is considered reactionary among the women's studies crowd. She's probably less of a Marxist than the average college professor.
I would say Stevens Souter Breyer and Kennedy are moderates, while O'Connor bridges the conservative-moderate gap. The Chief, Scalia and Thomas are fairly described as conservatives.
I do not see Lawrence as a left-wing decision. For years moderates were troubled by
the disconnect between Roe and Bowers v Hardwick. That held that there is a right of privacy so strong that it covers killing babies, but so weak it doesn't cover making babies, doesn't cover privacy in the bedroom. Kennedy, a moderate with libertarian tendencies, solved this with a return to Lochner's substantive due process. Lawrence says that we have a limited government, with the people retaining some rights. That is the core belief of the conservativism.
Ashcroft v. Raisch presents another chance to advance conservative doctrine in the guise of a liberal holding. Might not happen, but the opportunity is there.
I think the comment that this court has no left wing is a fair one, unless one persona can be a wing. Indeed, in a world where thoughtful conservatism is in exile on the campuses and in the Republican Party, it lives on in the Court and among bloggers.
The article (editorial?) claims that the fillibuster suports judicial impartiality.
That could be true if by impartial we mean bland middle of the road acceptable to both sides. It's possible to have partial (in the sense of biased) moderates, and impartial extremists, but it's fair to say there's some correlation. Close enough for WaPo work.
NonVolokh challenges the claim that the court has a middle and right wing, but no left wing. I disagree, with the exception of Ginsberg. Ginsberg, true, is liberal, feminist, female, Democratic, possibly a New Yorker. On the other hand it's a sort of classical liberalism, concerned that women and other receive equal rights under the law. That's a position that is considered reactionary among the women's studies crowd. She's probably less of a Marxist than the average college professor.
I would say Stevens Souter Breyer and Kennedy are moderates, while O'Connor bridges the conservative-moderate gap. The Chief, Scalia and Thomas are fairly described as conservatives.
I do not see Lawrence as a left-wing decision. For years moderates were troubled by
the disconnect between Roe and Bowers v Hardwick. That held that there is a right of privacy so strong that it covers killing babies, but so weak it doesn't cover making babies, doesn't cover privacy in the bedroom. Kennedy, a moderate with libertarian tendencies, solved this with a return to Lochner's substantive due process. Lawrence says that we have a limited government, with the people retaining some rights. That is the core belief of the conservativism.
Ashcroft v. Raisch presents another chance to advance conservative doctrine in the guise of a liberal holding. Might not happen, but the opportunity is there.
I think the comment that this court has no left wing is a fair one, unless one persona can be a wing. Indeed, in a world where thoughtful conservatism is in exile on the campuses and in the Republican Party, it lives on in the Court and among bloggers.
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