September 15, 2004

Bruce Fein is a Moron

A well-educated moron I'll grant you. A serious moron. A plain moron who dresses in such boring attire that it's obvious you're supposed to look at him for deep, insightful, solid thoughts. He's possibly even at some level a very smart moron. But he's a moron nonetheless. Why? Because he writes pointless claptrap like this:

"Judicial philosophy explains nine-tenths of a justice’s votes. Time and custom have come to accept three discrete brands as legitimate. The first searches for the original meaning of the Constitution. The second searches for a political compromise between contesting interpretations. The third searches for a construction that corresponds with contemporary standards of decency that flourish among intellectuals. At present, Chief Justice Rehnquist and Associate Justices Antonin Scalia and Clarence Thomas espouse the first brand, Associate Justices O’Connor and Anthony Kennedy the second, and Associate Justices Stevens, David Souter, Ruth Bader Ginsburg, and Breyer the third. Constitutionally incoherent rulings that sow more doubts than they resolve have been the result, with Justices O’Connor and Kennedy characteristically casting the tipping votes. Exemplary was the 5-4 affirmative action opinion in Grutter vs. Bollinger (2003) by Justice O’Connor, which sustained racial preferences in university admissions, but plucked a 25-year limit from the sky as a political compromise for ending violations of the equal protection clause of the Fourteenth Amendment.

I think it's extremely easy to critize both Grutter and Justice O'Connor and I'm certainly not hitting him for doing either one of those things. Nor am I criticizing his concern that we're not paying enough attention to Supreme Court appointments as a political issue (though it seems pretty clear most voters don't care). What bugs me is this continually trumpeted description of the Court as a 3-2-4 split composed of the "real" conservatives, the "no back-bone" conservatives and the flaming liberals who are apparently judging cases on the basis of faxes they get from Barbra Streisand and Cornel West. Judicial philosophy doesn't fit into the neat little boxes that characterize our political debate (consider the Apprendi and Apprendi-related coalitions). For example, Thomas and Rehnquist are both arch-conservatives, but of notably different stripes. Kennedy is pretty damn conservative, but his belief in individual liberties and the freedom of speech places him on the "wrong" side of some issues from the perspective of the FRC and the Christian Coalition, so therefore he's less "conservative". From the last few terms if anyone's like O'Connor it's Breyer. And the idea that Souter, Stevens and Ginsburg are a cabal meeting in the night seeking ways to force the cultural preferences of Manhattan on Wisconsin - it is to laugh. Yes, there are some big divides on the Court that match Republican/Democratic "conservative"/"liberal" divides (Bush v. Gore leaps to mind). But the idea that there are these 3 basic approaches to judicial philopsohy and that these are the camps - save if for the fund-raising letters folks.

Posted by armand at September 15, 2004 04:26 PM | TrackBack | Posted to Law and the Courts


I'm not sure I disagree with you, in general, except over one, important point. You write:

Nor am I criticizing his concern that we're not paying enough attention to Supreme Court appointments as a political issue (though it seems pretty clear most voters don't care).

I think more and more voters really do care about this. I have seen at least a couple of blog posters arguing that their vote in November is really about SC nominees and they are holding their nose over the actual candidate (left or right). I sure don't like Kerry, but I'm truly scared to death of what a post-Bush SC might look like.

Posted by: baltar at September 16, 2004 11:26 AM | PERMALINK

Actually that was probably the number 1 reason I voted for Gore in 2000, so obviously it's something I care about, and a lot of other bloggers feel the same way. I'm just saying that from the polls I've seen I don't see much in them to suggest that it's a top priority of swing voters.

Posted by: Armand at September 16, 2004 11:32 AM | PERMALINK
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