Roberts and the Right-Wing Court

I'm researching Roberts a little bit - actually I'm trying to focus more on the Senate than on him, but with little luck because Thomas is a very user-unfriendly site - and I came across this opinion piece by CNN.com writer Ed Lazarus.

The nutshell version is Lazarus thinks Roberts will get through the Senate easily because Dems will realize they can't win, and then Lazarus argues that's a shame because substantive debate would be good for everyone:

"It has been more than a decade since the last Supreme Court confirmation hearing, of Justice Stephen Breyer. And it has been almost two decades since the last confirmation hearing -- Robert Bork's in 1987 -- that produced a genuine debate over competing conservative and progressive visions for the Constitution."

As far as it goes, I couldn't agree more. Robust and open debate is not only vital to our nation's government, but extremely entertaining, as well. But in the very next paragraph, Lazarus gives us a taste of his idea of "genuine debate."

"Since that time, the Court has moved steadily to the right and has established a long track record of conservative judicial activism, overturning parts of more than 30 federal laws."

Steadily to the right, huh? I guess at the very least you've done us the favor of dispelling any unrealistic hopes that you meant what you said about genuine debate. The closest thing we'll get to a defense of such a ridiculous statement is a reference to the Supreme Court's decision in Bush v. Gore, which put Bush in the White House by ending Gore's recount attempts. Look, even if I were to concede that Bush v. Gore is an example of "conservative judicial activism," rather than, say, a rudimentary grasp of statistical methodology, and Al Gore's transparent attempts to skew statistics in his favor by recounting only in heavily Democrat counties, one example doesn't establish the trend.

By contrast, let's consider what's happened in the past thirteen years, the period in which the Court has supposedly been moving steadily to the right:

Planned Parenthood v. Casey, 505 U.S. 833 (1992) - upholds the right to abortion announced in Roe.
Stenberg v. Carhart, 120 S.Ct. 2597 (2000) - States can't ban partial-birth abortion.
Hamdi v. Rumsfeld, 542 U.S. 507 (2004) - limits Commander-in-Chief power to detain enemy combatants in a time of war.
Rasul v. Bush, 542 U.S. 466 (2004) - expands federal judicial habeas corpus power to cover enemy combatants, further limiting Commander-in-Chief power.
Lawrence v. Texas, 539 U.S. 558 (2003) - finds a right to homosexual sodomy in the Constitution.
Easley v. Cromartie, 532 U.S. 234 (2001) - loosens restrictions on a State's power to gerrymander on racial lines, if it results in more minorities getting elected.
Grutter v. Bollinger, 539 U.S. 306 (2003) - upholding affirmative action at a Michigan law school, holds that racism is okay as long as it hurts white people.
Nevada Dept. of Human Resources v. Hibbs, 538 U.S. 721 (2003) - expands Congress' power to force states to pay for maternity leave.
City of New London v. Kelo, 125 S.Ct. 2655 (2005) - government can take your property whenever it feels like it.
Gonzales v. Raich, 125 S.Ct. 2195 (2005) - Expands the Interstate Commerce power to include things that are neither interstate nor commerce.
Simmons v. Roper, 125 S.Ct. 1183 (2005) - strikes down the death penalty as applied to murderers who were minors when they committed their brutal crimes.
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002) - strikes down federal law banning virtual child pornography.
Ashcroft v. ACLU, 542 U.S. 656 (2004) - Congress can't criminlize giving children access to internet porn.
McCreary Cty. v. ACLU, 125 S.Ct. 2722 (2005) - No ten commandments displays in courthouses.

Of course, more cases could be cited. And of course, cases could be cited to the contrary, and my list is not beyond criticism. For example, while Raich disappointed limited-government conservatives who don't like expansive Interstate Commerce powers, it also satisfied social conservatives who oppose medical marijuana. As another example, while the Gruttinger case held the law school could use racial standards, the companion case, Gratz v. Bollinger, held the undergrad school could not. But if someone wants to argue my points, the argument must actually be made, rather than asserted and abandoned as established, as Lazarus has done.

But to review, the Supreme Court has twice upheld abortion rights (Casey and Stenberg), expanded affirmative action in gerrymandering (Easley) and in higher education (Gruttinger), restricted the President's war powers (Hamdi and Rasul), invented from whole cloth a right to homosexual sodomy (Lawrence), expanded eminent domain power (Kelo), restricted States' rights to offend French sensibilities about the death penalty (Simmons), expanded Congress' regulatory power (Raich), ordered the removal of religious displays (McCreary County), and blocked efforts to punish child pornography (Free Speech Coalition).

Suffice it to say I'd be verrrrrry interested to see Lazarus defend his claim that the Court has moved steadily to the right.

The next interesting bit from Lazarus is this:

"Brains, credentials and personality are important in a Supreme Court nominee. But they are not as important as a nominee's substantive views. We may rationally prefer a nominee who is less brilliant, but more liberal, over a conservative star like Roberts."

I don't know who this "we" is he's talking about, given that the more liberal folks in the country have no right whatsoever to nominate Supreme Court nominees at the moment. This statement comes after a section highlighting some of Roberts' appellate briefs on controversial topics like abortion, prayer in schools, and flag burning. But I think it's important to point out that Lazarus, true to form, has once again left off from lofty statements about what the debate should look like in favor of something much less substantive.

Towards the beginning of the column, the author says we should be debating broad ideas: how should the Constitution be interpreted? What are the limits on Congressional power? What about unenumerated rights? The strength of precedent? These are broad, structural, philosophical arguments, and eminently fascinating. Turning, then, from the broad to the discreet, as in an examination of prayer in schools, abandons exactly what Lazarus says we should be debating.

To illustrate, let's stick with prayer in schools. In the microscopic level, we only have one question: should prayer in schools be allowed? On the macroscopic level, we ask the fundamental question, On what basis do we decide whether prayer in school is allowed? Which branch of government gets to decide? What is the role of states in the decision?

And the distinction is crucial, because one set of questions is legitimate in the confirmation process and the other is not. No Senator should be able to ask a potential judge how he will rule on a particular issue. But a question about judicial philosophy goes to the heart of qualification, and is therefore fair game. Lazarus blurs the fundamental distinction. I suspect many people will in the weeks and months to come.

Finally, this gem:

"Intelligence is not a trump card -- even on the Supreme Court."

I guess that explains Ruth Bader Ginsburg.