While the fight for Stevens' seat looks to the average American like a one-off, it happens amid a puzzling lack of passion over the judiciary from this White House. We may yet get a peek at a White House roaring into action this summer, to correct for the rightward tilt at the Supreme Court. Or we may watch the White House continue to put the courts second to everything else in its legislative agenda.
—Dahlia Lithwick, Slate magazine
Actually, this White House’s lack of passion over the judiciary is not puzzling at all. It is simply part and partial of the influence on important domestic policy that White House chief of staff Rahm Emanuel, at least by appearances, has.
Or, backing up one more step, it flows naturally from the president’s decision in the weeks following his election to stock his administration with Clinton administration official who think it’s still 1996. Among them, of course, Emanuel, who appears to have as much authority over policy decisions as Karl Rove had in the Bush administration. And like so much of political Washington, including Republican congressional types, Emanuel thinks the current conservative movement is the conservative movement of the ‘80s, ‘90s and Bush II era. It is not.
It was a Bloomberg article published on Sunday that set off the current short-list talk, with its supposed scoop that “a White House official familiar with the deliberations” said the president is focusing on a group of three candidates and that threesome “includes U.S. Solicitor General Elena Kagan and federal appellate judges Diane Wood and Merrick Garland.”
Is the leakier, or planter—take your pick—Emanuel? Probably, given the makeup of the short list.
One sentence in particular in the article suggests this, or at least illustrates the time warp that the short list compiler exists in. It says that of the three short-listees, Garland “is perhaps the most conservative of the trio, often siding with the government on criminal questions.” Another article I read about the Bloomberg-reported short list phrased it in bald Reagan-Clinton-era terminology. Garland, the article said, has some strong law-and-order opinions to his name. These and other reports suggest that Sen. Jon Kyl, Republican Majority Whip and a Judiciary Committee member, is said to think Garland would be just fine.
And he would be—for those politicians who, like Kyl, haven’t noticed that the current rightist movement in this country is predominately antigovernment across the spectrum of issues. Unlike the conservative movement of the Reagan/Clinton era, this one is antigovernment across a broader range of issues, including those on which their predecessor rightwingers were decidedly pro-government. Today’s movement’s adherents oppose taxes and regulation of businesses, but they also oppose unlimited police and prosecutorial powers and therefore mechanically pro-government court rulings in civil rights and criminal cases. They elevate, or at least claim to elevate, individuals’ rights over government power, whether the government is federal, state or local.
This ideological divide between the older movement and the new one is significant in judicial-appointment politics, or at least it will be if the Obama administration recognizes and employs it, which it shows no sign of doing.
This conservative ideological split between older and new conservatives actually reflects a longstanding one between two factions of the Federalist Society, the national bar group from which four of the five conservative justices and most current Republican-appointed federal appellate judges hail. The pro-police-powers, pro-authoritarian faction of that organization has dominated in the group’s hierarchy, and so the Republican appointees to the federal bench reflect that faction’s ideology. And Kyl, Emanuel, and (apparently) Obama haven’t noticed that, beyond Washington and the Federalist Society, that ideology is, well, largely passé.
The key to political success for this administration in its nominees for the bench, including for the Supreme Court, is not to run on a 1980s treadmill but instead to educate the public about what that era’s brand of judicial conservative actually stands for—what it actually does, and how it affects ordinary people, in practice. They might start by illustrating the impact of the Supreme Court conservatives’ unremitting. decades-long assault—though procedural, jurisdictional, quasi-jurisdictional, and legal “immunity” gimmickry—on the right of access to court and access to appeal and on a panoply of substantive constitutional rights.
They might, for example, follow the lead of New York Times Supreme Court correspondent Adam Liptak, who discusses the impact of a 5-4 Supreme Court procedural ruling three years ago in criminal case on military veterans’ access to Veterans Administration medical benefits to which the veterans are entitled. And they might follow that with a discussion of the 5-4 majority’s whistleblower jurisprudence. And then with an explanation of that same majority’s overt rewriting of a procedural statute that states the extent of the facts that a person must recite in a complaint that opens a lawsuit in order to avoid a spontaneous dismissal of the lawsuit by the judge.
Or they could nominate candidates for the bench who can make these points, discussing one after another Supreme Court opinion issued within the last few years, almost none of which the general public knows exist.
For some people, the hot-button culture-wars issues such as abortion, employment discrimination and, yes, pro- or anti-government on criminal-defendants’ constitutional rights, will always be what judicial selection and judicial confirmation hearings are about. Like aging hippies who for decades after the era knows as “the 60s” ended, and like women’s-movement activists of the ’70s and ’80s—including female judges who have studiously built their I’m-a-liberal-judge credentials almost entirely on their high-profile women’s-issues judicial writings (because their handling of those issues is all that really matters to liberals, right?)—these folks lack the mental agility to recognize that, culturally, time has passed them by. They wear equestrian blinders, and cannot remove them.
Which is why they haven’t noticed that Willie Horton is dead and has been replaced with a tea bag.