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 Judicial Change to Believe InPosted on Jul 5, 2010Here’s when you know something momentous has happened to our struggle over the Supreme Court’s role: When Republicans largely give up talking about “judicial activism,” when liberals speak of the importance of democracy and deference to elected officials, and when judges are no longer seen as baseball umpires. All these things transpired during Elena Kagan’s confirmation hearings before the Senate Judiciary Committee last week, though you might not know that unless you saw some of the most thoughtful blogs or news stories. And what happened has the potential to transform a listless debate that has been ensnared in conservative categories for at least three decades. The standard account of Kagan’s testimony is that she was brilliant, charming and evasive. The brilliant and charming part is right, as even her Republican critics on the committee were gracious enough to concede. And it’s true that Kagan didn’t fall into the trap of declaring how she would rule on this case or that. She wants to get confirmed, after all. But far more than she was given credit for, Kagan did lay out a clear judicial philosophy that (1) sees courts as having an obligation to defer to the choices of elected officials except in the most extreme cases, and (2) puts the lie to Chief Justice John Roberts’ notion that judges are mere “umpires,” as if their task was, in Kagan’s cutting word, to be “robotic.” And it was Republican senators who seemed to be begging her to be a judicial activist and overturn the enactments of Congress. Thus did Sen. Tom Coburn ask her if she would rule against a law requiring Americans to eat a certain number of fruits and vegetables. Advertisement “Judges,” Kagan declared, “should realize that they’re not the most important people in our democratic system of government.” It’s a line that might usefully be engraved on a wall of the U.S. Supreme Court building. Yes, Republicans seemed to be admitting implicitly, it is the conservatives who are now the judicial activists. That’s why they moved on during these hearings to a new attack line against liberal jurists as being “results-oriented.” This phrase doesn’t work any better for conservatives. As law professor Jonathan Turley pointed out on MSNBC, it’s hard to think of a more “results-oriented” case than Bush v. Gore, which saw a conservative majority declaring that its reasoning in making George W. Bush president was not to be invoked in future cases. Nonetheless, the concession that conservatives are being forced to make on the issue of activism is enormous. On the matter of judges as umpires, Kagan could have ducked and let the pitch sail past her. She didn’t. The umpire metaphor, she said, has “its limits” because it wrongly suggests that judging “is a kind of robotic enterprise” and that “everything is clear-cut.” Sounding rather like retired Justice David Souter in his recent Harvard commencement address, Kagan said, correctly, that in the hard cases, “there are frequently clashes of constitutional values.” That’s why “not every case is decided 9-0.” Indeed, the umpire metaphor is dangerously and maybe even intentionally misleading. It implies that the answer a particular Supreme Court majority comes up with is the one and only possible answer to a difficult question. If this were true, we would not be having the very political struggle over the court that was so evident during these hearings. And this was the other important milestone of this confirmation battle that bodes well for the future. While Republican senators dominated Justice Sonia Sotomayor’s hearings, Democrats this time displayed a degree of discipline you just don’t expect from a party that so often sees discipline as a dread disease. One Democrat after another reinforced the argument that a conservative court could bring us back to the Gilded Age by ceding power to corporations and undercutting government’s ability to act as a countervailing power on behalf of individuals with weak bargaining positions. Having once made it easy for their opponents to cast them as elitists, progressives are behaving like small-d democrats again. Now that’s a change we can believe in—and an approach that might even win. E.J. Dionne’s e-mail address is ejdionne(at)washpost.com.  TAGS:
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By Peter Knopfler, July 6, 2010 at 12:05 pm Link to this comment
Obama`S corporate dictatorship, to bend the rules His
Report thisway, Kagan loves The OBAMA image, since Marshall. We
know little only the professional student side, nothing
more! Too familiar with the White house, School days
School days former school mates, or just soul mates!
Too Obama sized!
By SteveL, July 5, 2010 at 8:37 pm Link to this comment
So far Obama’s Supreme Court nominees have been first rate. But wait for the fireworks to really start if Obama gets to replace any of the conservatives on the Court.
Report thisBy the worm, July 5, 2010 at 3:18 pm Link to this comment
Dear MrFreeze,
‘Whining’ is what infants do when they don’t get their way. That’s why it’s fun
for the media to say liberals ‘whine’ - it portrays them as infants and that’s the
message within the message that they want you and me to hear.
Glenn Beck whines, but the media knows better than to characterize it as
‘whining’, because the ‘infantilization’ metaphor is already reserved for liberals
and that characterization would simply confusing us simple folks.
Now, perhaps, whining is the appropriate response to the actions below, but
come November, I think you, me, the Democrats in office now and President
Obama are going to find that the voters are going to do more than ‘whine’.
I suspect they’re going to vote third party, not vote or vote Republican.
All the fun that has been had calling the liberal wing of the Democratic Party
‘whiners’ because they didnt support the policies listed below is going to
dissipate very rapidly as the results come rolling in in November. And the
incumbent Democrats and Obama are going to reeling - rolling and reeling.
Tthe Democratic Senators and Congress men and Congress women could have
supported the middle class, and they would have keep the ‘liberals’, the
majority of the ‘independents’ and even some Republicans. But the Democratic
Senators and Congressmen and women capitulated and did not lead in the
interests of the voters.
The President could have led on the key issues below and maintained the
support of ‘liberals’, the majority of the ‘independents’ and even some
Republicans. But the President either did not lead or led down the path of least
resistance - away from the interests of the voters.
Here’s the list once again, MrFreeze.
1. Ignored previous Republican profligacy, crimes, misdemeanors ?(Effectively,
allowing torture and rendition to stand as precedents for future Presidents and
Vice-Presidents to use at their discretion)-
?2. Supported a stingy stimulus that was a third tax breaks (Contributing to the
current 9.5 % unemployment rate) -
?3. Doubled-down, the accelerated the Bush bailouts (Effectively closing off any
other options to address the recession by raising the debt to help Wall Street
and closing off options to help Main Street) -
?4. Escalated a meaningless and fruitless war in Afghanistan -
?5. Gutted real financial reform (no Glass-Steagle, no ‘too big too fail) –?6. Not
helped people with bankruptcy & mortgages remediation (record foreclosures
and more ‘help’ for Freddie and Fannie measured in billions)-
?7. Fiddled around & not passed a jobs bill and now cant pass an extension of
unemployment insurance -
?8. Rejected the only option that would have simultaneously extended coverage
and cut costs (single payer) -
?9. Promoted off shore drilling -?
Most voters could not support these actions/decisions. Most voters were hurt
by them.
MrFreeze, on the list above, if you see a concern that you consider childish or
infantile, please, let me know. If you think bringing these things up is childish
or infantile, then, we have a disagreement for sure (but let’s just agree to
disagree, shall we?).
In the meantime, please, re-consider referring to your fellow liberals as
“childish” and “infantile”. It’s discouraging to hear a fellow liberal adopting the
rhetoric used by the conservative media. It tells me the conservative media is
successfully ‘framing’ the dialogue, and that is , of course, one of their main
goals.
It is a pity one of the Democrat’s main goals is not governing in the public
interest.
“In the Public Interest”. Hummmm. That would be a good way for the
Report thisDemocrats to frame their policies - “In the Public Interest”.
By mrfreeze, July 5, 2010 at 8:04 am Link to this comment
the worm - Your post is so much whining even though I agree with your sentiments. You’ll not find a more liberal guy than me. The problem is Americans are simply too complacent, lazy, stupid or brainwashed to fix all the problems you list. Do you know why? Because the vast majority have bought into the idea that someday they’ll all be rich if only the private sector would swoop down, embrace us and make us true capitalists.
Don’t expect ANY focus on economic issues if immediacy. There’s a whole national propaganda dynasty out there to make sure that doesn’t happen.
Report thisBy the worm, July 5, 2010 at 7:55 am Link to this comment
To MrFreeze,
Nope. Im employed, Thank you.
Several million of your fellow citizens are not.
Many of your fellow citizens are losing their lives in Afghanistan.
Many more are losing their homes.
Students are in debt or dropping out of school.
etc.
etc.
etc.
Not a bad morning for me, but as one of friends reminded me recently,
“Worm, it’s not all about you.”.
Have a happy day, Mr Freeze.
Best
Report thisThe Worm
By mrfreeze, July 5, 2010 at 7:35 am Link to this comment
to the worm - WAAAAAAAAAAAAAAAAAAAAAAAAAAA
Life too tough for you this morning?
Report thisBy the worm, July 5, 2010 at 7:05 am Link to this comment
Now, that EJ Inane has convinced us that the judicial branch is well on its way to
‘changes you can believe in’?
May be his Pollyanna skills can be put to use to persuade us that these, too, are
‘changes we can believe in’:
1. Ignored previous Republican profligacy, crimes, misdemeanors ?(Effectively,
allowing torture and rendition to stand as precedents for future Presidents and
Vice-Presidents to use at their discretion)-
?2. Supported a stingy stimulus that was a third tax breaks (Contributing to the
current 9.5 % unemployment)-
?3. Doubled-down, the accelerated the Bush bailouts (Effectively closing off any
other options to address the recession) -
?4. Escalated a meaningless and fruitless war (“Oops, they’re not in Afghanistan
anymore, they’re in Pakistan!”, “Oops, they’re not ‘terrorists’, they’re the bride
and groom!’)-
?5. Gutted real financial reform (no Glass-Steagle, no ‘too big too fail) –?
6. Not helped people with bankruptcy & mortgages remediation (record
foreclosures and more ‘help’ for Freddie and Fannie measured in billions)-
?7. Fiddled around & not passed a jobs bill or unemployment insurance
extension -
?8. Rejected the only option that would have simultaneously extended coverage
and cut costs (Single payer) -
and more recently…
?9. Promoted off shore drilling (Golly, Mr Inane, do you think that fling with ‘bi-
partisanship garnered any votes?)
Great to wave the flag for a judicial nominee. Now, if we could please focus on
Report thiseconomic issues of immediacy (because, after all, as the economists remind us,
‘in the long run, we’re all dead’ - and, that’s not the change we want to believe
in right now).