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Wednesday, August 03, 2005

Clinton's Appointments, The Mainstream, & cetera...

Much has been made, especially by liberal commentators and politicians such as Sen. Charles Schumer, of how balanced President Clinton was in his judicial appointments. A corollary of this, implicitly or explicitly, is that President Bush ought to but has not sought to be so "conciliatory." There is a fair point that President Clinton did not promise his supporters to put people on the Court who would behave like William Brennan, or like Thurgood Marshall, whereas Pres. Bush repeatedly suggested that Justices Scalia and Thomas were his model justices. But of course, the fact that Antonin Scalia and Clarence Thomas are the most "conservative" members of this court does not mean that they are in any interesting way the judicial (but conservative) equivalents of Brennan and Marshall.

More importantly, I think it should be noted that President Clinton got elected because he recognized that for a Democrat to win the White House he needed to run to the right. He needed to reject the "Massachusetts Liberalism" that had gotten Dukakis into trouble and that has fallen out of favor with the national electorate since at least 1972 (President Carter did not run as a particularly liberal fellow in either of his election campaigns).

Thus, it is more than a little strange to hear Senators like Ted Kennedy and Chuck Schumer opine as often and as stridently as they do about the importance of nominees who are within "the mainstream," or to extol President Clinton's nominations as if they were the products of virtue rather then politics. Of course, it is also possible, and I think likely, that President Clinton, who taught Constitutional law and had a lot of generally moderate instincts, recognized just how wacky was the jurisprudence of Justices like Brennan and Marshall. So I will buy that Clinton did not, by and large, appoint terribly left wing people to the judiciary. But I do not accept that he did so because virtue demanded it: he did so because the mainstream is well to the "right" of Senators Schumer and Kennedy, and he was well to the right of them most of the time as well.


Blogger Simon said...

I think part of the problem is that liberals honestly believe that Justice Ginsburg and Justice Breyer were "compromise" appointments, and that those Justices are "moderate". Whereas, in fact, they are obviously anything but; Ginsburg is arguably the most liberal member of the court, more so even than Stevens, and Breyer is as reliable for liberals as Rehnquist is for conservatives (i.e., he still surprises you from time-to-time, but you know what he stands for - or, in Breyer's case, doesn't stand for). Yet TIME recently described Scalia and Thomas as "staunch conservatives" (a preposterious statement by its own terms; I'll bet "staunch conservatives" loved Scalia for Hamdi and Thomas for Raich), while there were no liberals on the courts - Ginsburg and Stevens were "moderates".

So I really do think that they honestly think that way, ludicrous though it may sound. Of course, the other part of the equation, vis-a-vis their handling of the O'Connor retirement, is that they will throw out bathwater, baby and all to uphold Roe, even if that means lionizing a retiring Justice who actually disagreed with them in nine cases out of ten. This is as inescapably demanded by their activist base as the nomination of someone who WILL overturn Roe is demanded by the President's activist base.

9:11 PM  
Anonymous A. Rickey said...

It's worth noting that for the head of the DNC, Souter and Ginsberg are part of Bush's "right wing Supreme Court.

Rhetoric left reality on this one long, long ago.

9:30 AM  

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