September 13, 2005
Thomas Oliphant has always been an asshat of colossal proportions, but if you remain in the slightest doubt I recommend to you this excrescence, which might more aptly have been titled, "What Passes for Thought On The Op-Ed Pages of The Boston Globe These Days".
Cass Sunstein, on the other hand, has long been one who, while I don't always agree with him, is an honorable and fair opponent. He proves it with this piece, in which he quite reasonably and dispassionately analyzes John Roberts' judicial philosophy:
Many people feared President Bush would try to replace Sandra Day O'Connor, a minimalist conservative, with a nominee promoting an ambitious agenda for remaking American constitutional law. But there is not much evidence that the president's choice, John Roberts, has such an agenda. In his two years on the federal bench, he has shown none of the bravado and ambition that characterize the fundamentalists. His opinions are meticulous and circumspect. He avoids sweeping pronouncements and bold strokes, and instead pays close attention to the legal material at hand. He is undoubtedly conservative. But ideology has played only a modest role in his judicial work. For example, he voted to allow a civil rights action to proceed against the D.C.-area subway system. In so voting, he rejected the claim, advanced by Reagan appointee David Sentelle, that Congress lacks the power to require the subway system to waive its sovereign immunity.
The Roberts nomination is not welcomed by those who object to the rightward drift of the federal courts or believe that Justice O'Connor's successor should be no more conservative than she. And on key issues, Judge Roberts will likely be on Justice O'Connor's right. There is no assurance he will vote to uphold Roe, and it is most unlikely he will aggressively read the Constitution to protect vulnerable members of society.
But at this point in our history, the most serious danger lies in the rise of conservative judicial activism, by which the interpretation of the Constitution by some federal judges has come to overlap with the ideology of right-wing politicians. For those who are concerned about that kind of activism on the Supreme Court, opposition to the apparently cautious Judge Roberts seems especially odd at this stage. The far more reasonable path is to keep an open mind and to hope for a serious and substantive confirmation process.
That is exactly what I see in Roberts' opinions: a fundamentally minimalist approach that should be heartening to conservatives and liberals alike, for it is the very opposite of extremism. It speaks of a judge who well understands his role on the Court: neither to usurp the role of Congress, nor that of the Executive Branch. Neither to read too much, nor too little, into the Constitution.
And when in doubt, to let the people's elected representatives decide matters of national import unless the Constitution, the document from which his authority flows, clearly and unequivocally says otherwise. This philosophy places him firmly beyond the reach of partisan politics.
Which ought to be a comfort to people like Thomas Oliphant, but somehow never is. Because they want to see the Court made into another legislature that they can bend to their will.
They wish to see the rule of Men, not the rule of Law.
Posted by Cassandra at September 13, 2005 09:32 AM
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Never mind the little detail that it's a DONE DEAL ;P
Posted by: Pile On at September 13, 2005 08:40 PM