Balkinization: Partisan entrenchment

Partisan entrenchment

This New York Times article describes a twenty year plan among conservative legal elites to stock the federal courts with conservatives, in preparation for packing the Supreme Court with more of the same. At the margin, the various machinations described in the article may have mattered some. Far more important, however, were repeated victories at the polls and the transformation of the Republican Party into a social movement party. It is the success of that social movement (or more correctly, interlocking set of different conservative social movements) that produced today's conservative Supreme Court majority. If you don't like what the Supreme Court is doing today, you or your parents shouldn't have voted for Ronald Reagan, George H.W. Bush and George W. Bush. And if you want more moderate Republican appointees to the federal courts, you or your parents should have returned more Democrats to the Senate. Sure there can be variations at the margin, but you have to look at the larger structural features that have help shape the current situation. When you have a Republican President and 55 Republican votes in the Senate, you should pretty much expect appointments like John Roberts and Samuel Alito.

Posted 7:25 AM by JB [link]

Comments:

Correct. I wrote about judicial ethics and politicization yesterday, taking off on the Scalia Federalist trip and the Minnesota judge race decisions. There's a link to the code of conduct for US judges in there too, if you don't have it.

# posted by

Anonymous : 11:07 AM

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# posted by

John : 1:34 PM

Give them what they ask for, no thicker a rope could one hope for. Now will everything that goes wrong will appear more likely to be their fault?

# posted by

John : 1:36 PM

What I get from your linked Times article is Bork saying almost but still not all the way there. How rugged an individualist is a Chief Justice whose wife is a working attorney, now, in times so changed since the Federalist Society sprang whole from the mind of Zeus? No, times and these people, too, have changed, jurists though they be, and conservatives at that. It is interesting to depict the Alito battle for confirmation as the apotheosis of a judiciary-based Social Movement. I hope he reveres the institution which has nurtured him, and that he appreciates fully the measure of Bork's disappointment that even Alito plus Roberts do not a sure majority make. Though there are two more posts on the SCOTUS bench maturing toward the replacement processes.

# posted by

JohnLopresti : 3:46 PM

The Federalist Society sure is working hard to pat itself on the back. The fact is, it was the guys at the RNC, not the Federalists, who spent the last twenty years making judicial nominations an issue for conservatives. The RNC did this by pushing abortion with the religious right, pushing salacious stories of freed rapists and drug dealers for the law 'n order crowd, and generally sowing the seeds of cynicism for everyone left over. The Federalists may have reaped the benefits, but they didn't do the heavy lifting.

For the last couple of decades, the RNC has out-thought Democrats. While Dems have saved up huge wads of cash to spend in an orgy of ad buys just before a given vote, Republicans have spread their spending out, working to change the attitudes of voters long before the vote occurs. It took a long time to destroy Americans' opinions of judges, but the RNC did it. Impressive work.

How would the RNC have dealt with a Democratic president making Supreme Court nominations? First, they would have spent months attacking the ludicrous nomination process itself. Who says a judge doesn't need to comment on current law? Why can't a judge say whether or not he agrees with past decisions? Long before the hearing started, the RNC would have influenced the public and media, setting the stage for a fine show of outrage when the liberal nominee tried to avoid answering questions. By hearing's end, Republicans would have manufactured outrage by shifting the debate. The nominee's judicial views wouldn't be under fire, but rather, the nominee's performance in the hearings.

If the RNC were resisting Alito, he would have never gotten away with dodging all those answers...

# posted by

owenz : 12:49 PM