Balkinization  

Monday, October 03, 2005

The Information Advantage

Mark Graber

What both John Roberts and Harriet Miers have in common is that the administration knows a lot more about them than the rest of us. In this sense, Miers is very different than David Souter, who seems to have been unknown to everyone, including President Bush the Elder, when nominated. What may be most troubling about such nominations is that they are means of avoiding accountability. An increasing number of political scientists and law professors are advancing what might be called a political regime theory of the judicial function. On this view, the constitution may be plausibly interpreted in different (not infinite) ways so presidents (and senators) are authorized by election to seek federal justices who share their constitutional vision. As I have said in public numerous times, my primary objection to Scalia is my objection to Ronald Reagan and the Republicans who won the 1980 Senate elections. My objection to Bush the younger is that he steadfastly refuses to inform us of exactly what is his constitutional vision. Does he favor overruling Roe or merely narrowing the decision. What about the revival of commerce clause and 11th amendment limitations on federal power. I do not need detail, but I'd like something more than cliches about modest justices and judicial restraint. In short, President Bush is clearly moving the court in a particular direction. he just isn't telling us what that direction is other than vaguely conservative.

Comments:

I suspect that Bush has been largely subcontracting his judicial appointments, and I would be surprised if he had anything approaching a "constitutional vision" other than the Supreme Court staying out of his war plans, cutting back abortion rights, and hesitating to issue decisions like Lawrence, Grutter, Roper, etc.--in other words, results.

Bush probably couldn't tell you the difference between Scalia's and Thomas's jurisprudence, much less articulate "exactly what is his constitutional vision."
 

Inevitably this always catches up with you and usually at the worst possible time calculation . calculation
 

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