May 9, 2014

"It May Already Be Too Late to Confirm a Replacement for Ruth Bader Ginsburg" is a silly title that isn't even trying to say what this TNR article is about.

Not long ago, lawprof Erwin Chemerinsky and others were pressuring Justice Ruth Bader Ginsburg to heave herself out of her seat on the Supreme Court to give President Obama the opportunity to replace her, but no point now, according to Simon Lazarus and Tom Donnelly at The New Republic, in a piece with the silly title "It May Already Be Too Late to Confirm a Replacement for Ruth Bader Ginsburg."

I'm saying "silly" because the fussy accuracy consciousness of the first half of the title turns into blatant inaccuracy paired with the second half of the title. As long as the United States in its current form, under our Constitution, persists, it's never too late to confirm a replacement for Ruth Bader Ginsburg. Whenever Justice Ginsburg's seat becomes available, some President will nominate someone who will be confirmed by the Senate.

What it "may" already be too late for is what the Lazarus-Donnelly article means to tell us about, which I don't have to read their article to know. It's too late for President Obama to nominate the kind of Supreme Court Justice he presumably wants — a solid liberal — and to get confirmation from the Senate. The November election is too close, the Democratic Party is at risk of losing the Senate, the spectacle of attempting to confirm a liberal Supreme Court nominee will put Democratic Senate candidates at greater risk, and the GOP Senators will have reason to drag out the confirmation process so that it might not even be successful.

The most interesting point that Lazarus and Donnelly make — not reflected in the silly title or in the idea the silly title is meant to express — is that keeping a left-leaning Justice off the Court is an issue that works for Republican candidates far more that getting a left-leaning Justice onto the Court could work for Democratic candidates.
Most Democratic voters simply don’t see the courts as relevant to the—mainly economic—issues they care about most....

In contrast, Republicans savor high-decibel political fights over the courts. In the short term, they see them as a way of firing up their base and burnishing their brand as defenders of the Constitution and the rule of law....

This asymmetry yields a chronic, structural disadvantage that limits the options available for Democratic and progressive leaders, when battles flare in the ongoing war over the courts. 
This is an amusing concession that liberals need to do their court appointments when elections aren't too close. It's Democrats and not Republicans who want to avoid accountability for judicial appointments.

But Lazarus and Donnelly imagine — or purport to imagine — that "Democrats and progressives" can "transform the politics around the courts" — that is, make voters get excited about putting left-leaning Justices on the Court. Lazarus and Donnelly present a 3-point plan to accomplish this transformation:

1. Make people see that that liberal Supreme Court Justices will help them economically. That sounds really complicated to me. I doubt if the proposition is true, and what's the argument that it is?
Since June 2008, Senate Judiciary Committee Chair Patrick Leahy has held recurrent hearings designed “to shine a light on how the Supreme Court’s decisions affect Americans’ everyday lives,” showcasing victims of decisions detrimental to employment safeguards, retirement security, consumer protection, health care coverage, and securities fraud protections. And in the wake of the Court’s recent decision in McCutcheon v. F.E.C., which struck down long-established limits on aggregate campaign contributions by wealthy donors, Leahy and Senate Rules Committee Chair Chuck Schumer announced joint efforts to spotlight how “five justices once again have decided to rule on the side of moneyed interests,” beginning with former Justice John Paul Stevens’s high-profile testimony last week before the Senate Rules Committee. Most visibly, Senator Elizabeth Warren, leader of the Democrats’ populist wing, has begun to tie the courts to her larger economic message, warning progressives about “the corporate capture of the federal courts.” These are steps in the right direction, but thus far, these limited probes that have barely registered with the media or the public. 
Patrick Leahy shining a light somehow doesn't get media attention. I'm sure the media would help with the liberal-judge-appointing agenda if they could, so the failure to direct the public's attention to where Patrick Leahy is shining his light is strong evidence that Step 1 doesn't work too well.

2. Democrats and progressives should scare people about the consequences of allowing right-leaning judges to get their hands on left-leaning legislation like the Affordable Care Act. They need to warn people that "radical" theories like federalism, "[o]nce pie-in-the-sky academic musings," now get serious respect from Supreme Court Justices.

Speaking of pie in the sky... picture a liberal political candidate trying to alarm citizens about the idea that the Constitution gives limited enumerated powers to the federal government and reserves power to the states. Speaking of things confined to the academy! You can make intra-law-school folk nod their head at the notion that federalism is dangerous, but in normal political speech, even Democratic Party candidates assure us of their respect for the role of the states in our constitutional scheme.

3. Convince people that left-leaning constitutional interpretation is actually what the Constitution means, not simply what lefties like. Lazarus and Donnelly admit that Democratic politicos "cede the legal high ground to their Republican adversaries." The remedy is supposedly to roll out legal academics to inform the public of the theories that support the results liberals like. Supposedly, Senator Leahy is leading they way by pointing out that the decisions he doesn't like are wrong as a legal matter. And Obama sometimes throws rhetoric into his speeches about "the enduring strength of the Constitution," so there's that. And there are those law professors who've been working for years writing material that "demonstrates that the Constitution’s text and history often point in progressive—not conservative—directions." Roll those guys out. (I'm saying "guys" because Lazarus and Donnelly name 5 law professors and they're all guys, so I thought I'd insert some War-on-Women dissonance.)

Well, left-leaning politicos really should try to do this. They have ceded the high ground to conservatives, but I think the liberal constitutional law material doesn't play very well in common political discourse, and for too long the go-to liberal argument has been law is just politics and it's all about outcomes. If lefties abandon the all-about-politics meme and commit to taking legal arguments seriously and to demonstrating the soundness of their interpretation, they'll be taking quite a risk. As a law professor, I'd love to see it. I'd have some great blogging material.

But, honestly, I think the actual politicians know they can't operate on that level, AKA "the high ground." Still, I'd love the opportunity to poke at them and try to topple them as they posture and pose up there.

33 comments:

Henry said...

They should have titled it: "You Won't Believe These Three Crazy Ways to go Drunk Shopping for Justices"

Henry said...

Make people see that that liberal Supreme Court Justices will help them economically.

I love this idea.

Dear Justice Ginsberg. Send me money. Thanks in advance.

Hagar said...

Justice Ginsburg may be a "liberal." These guys are not.

My impression is that Ginsburg is a good person and a straight-shooter, besides having a marvelous voice. I do not wish these people to get an opportunity to replace her with someone in their mold.

RecChief said...

I don't see how they can pursue point #3. When you start with the premise that the Constitution is a "living document", essentially that it means whatever is convenient at the moment politically, that the courts are just an extension of politics rather than an in impartial arbiter,then it's difficult to make that argument. Especially when you have people like Ginsberg advising other countries not to model their constitution on ours. In my opinion, they've poisoned the well, the populace is too cynical to buy it. This would just come off as liberals/progressives/leftists asserting that this is what the Constitution means, and lo and behold, it supports all of our projects. In fact, it looks to me like the advice in the column is simply to change the PR campaign, not a change in thinking. So, it's just one more potential lie from the left to be on guard about.

I'm Full of Soup said...

I have absolutely no doubt Ginsburg will retire hastily for the good of the librul side. I guarantee it.

MadisonMan said...

War on old women

The Drill SGT said...

I don't think the Left can have it both ways.

1. Convince people that left-leaning constitutional interpretation is actually what the Constitution means,

2. Law and legal decisions is just politics.

It can't be both.

I think the Conservatives have a much simpler case that can be made to average people.

"The Founders thought X, Wrote X and The Constitution means what it says"

Bob Boyd said...

Ginsberg's position is secure because of the Constitution.
I don't see these lefty justices talking about a "living document" when it come to their own protections.
It would be politically expedient if she was gone? Heck, the President has a pen and a phone. What's the problem?

khesanh0802 said...

I am in full agreement the Drill SGT'S last line.

Illuninati said...

This is one of the best Althouse posts yet.

Who would have ever thought when the left rioted outside of the Democrat Convention in Chicago 1968 that those same rioters would soon own the very party they were protesting? One may despise Tom Hayden's morality but the riot was a great strategy. Now that the left owns the Democrat party they can use the historical accomplishments of the party to burnish their fabricated credentials as "liberals".


Larry J said...

1. Make people see that that liberal Supreme Court Justices will help them economically.

Like the liberals who won the odious Kelo decision, no doubt. Ask the people who were forced out of their homes how much they benefited from that liberal action.

Bill, Republic of Texas said...

All this may sound good in an article but real life shows it is a bunch of bullshit. The liberals have no problems confirming their most strident and ideological candidates. That is why the liberals on the court vote in lockstep.

Republicans have problems getting anything but moderate candidates through. I don't know why this is but that would be a much better analysis rather than just parroting what a couple of libs say.

Sharpen up, Althouse!

Michael K said...

Anybody who has listened to Chemerinsky on Hugh Hewitt's program knows what a hard lefty he is. He has never, in my hearing, admitted that any conservative idea is reasonable, let alone correct.

mccullough said...

Why not pressure Breyer to retire instead? He's not much younger than Ginsburg and is not as liberal of a justice. He's been on the Court for 20 years, just a year less than Ginsburg.

Plus, replacing a white guy wouldn't be as big a deal. Obama would have to appoint a woman to replace Ginsburg. But he'd have more flexibility replacing the liberal white guy slot.

SteveR said...

Bill is right, its expected that a democratic president will nominate a locked in vote. Justices that always work from the answer backwards.

Ignorance is Bliss said...

mccullough said...

...he'd have more flexibility replacing the liberal white guy slot.

So you think he's gonna nominate Putin?

Original Mike said...

"1. Make people see that that liberal Supreme Court Justices will help them economically. "

How is this a legitimate consideration?

jr565 said...

In response to each of the points:
1. Is that what the role of the Supreme Court is?
2. Scare people into believing something? isn't that the democratic playbook in a nutshell?
3. or to put it another way, convince people that black is white up is down and lies are truths.

Drago said...

The Drill SGT said...
I don't think the Left can have it both ways.

I don't think you've internalized just how capable the leftist mind happens to be when it comes to maintaining and truly believing multiple, simultaneous and utterly contradictory ideas.

In fact, that very capability is the minimal cost of admission into the leftist worldview.

Of course, many lefties (as we see on this blog) know they are being contradictory and don't care 'cuz "we won" and they actually enjoy being in the position of lording their hypocrisy and getting away with it.

For those it's all Fen's Law all the time.

Drago said...

mccullough: "Why not pressure Breyer to retire instead? He's not much younger than Ginsburg and is not as liberal of a justice. He's been on the Court for 20 years, just a year less than Ginsburg."

More liberal #WarOnWomen!!

jr565 said...

If you get the liberal Supreme Court justice you'll get a check. Money problems? worry no more. The liberal justice will solve all your fiscal needs. Stop hiding from debt collectors and instead walk in the sunshine knowing that the liberal justice is there to protect you.
But wait, there's more.
If you don't act now, the republicans are going to set up NSA style monitoring in women's uteruses to make sure they aren't having sex out of wedlock. And if you try to buy contraceptives they are going to chop off your heads. Gays are going to be rounded up and shoved into ovens. And the fuel will be used to power the Koch brothers mansion. UNless we get a liberal justice.

So act now, your life, your womb, your sexual identity, may very well be at stake!

cubanbob said...

The only conclusion I can draw from all of the lefty hysteria is that the left expects to lose the Senate in November. I hope that is the case but until that actually happens I won't get in the least bit optimistic.

As Rec Chief stated the left sees the courts as a non-elected backstop legislature needed to accomplish what the formal legislative branch for political reasons can't accomplish.

Fen said...

"Make people see that that liberal Supreme Court Justices will help them economically"

Because the purpose of SCOTUS is to help people economically.

What drek.

Who is this idiot? And at what dumbshit university did they get their education?

Fen said...

I very surprised Obama hasn't used his phone & pen to stack SCOTUS with 6 additional Justices.

The Cracker Emcee Refulgent said...

"If you get the liberal Supreme Court justice you'll get a check. Money problems? worry no more. The liberal justice will solve all your fiscal needs. Stop hiding from debt collectors and instead walk in the sunshine knowing that the liberal justice is there to protect you."

Sadly, this is wholly credible to the kind of people who re-elected Obama. Until the entitlement well runs dry, the GOP has no hope of retaking the presidency.

Drago said...

Falacrine: "Sadly, this is wholly credible to the kind of people who re-elected Obama. Until the entitlement well runs dry, the GOP has no hope of retaking the presidency."

True.

Too true.

Which is why it's become clear to me that, long term, we are destined for France/Spain/Greece type status in terms of gov't control, minimal/negative GDP growth and opportunity.

Human nature is what it is and history is replete with populations trading away whatever freedoms they thought they wanted for what they believed was "security".

Of course, 20 to 30 million 3rd world mentality illegals given citizenship over 5 to 10 years along with what the left has done to education in this country has pretty much sealed the deal anyway.

The US still possesses tremendous positive economic inertia. But over time that too would be bled dry.

Strelnikov said...

4. Nominate the "sold Liberal" anyway and count on the GOP to be afraid of stopping it - other than harrumphing - because the nominee will, by definition, be a member of a minority group or female or both.

I'm not sure what they're afraid of. The GOP has proven itself spineless in these fights consistently and repeatedly.

Darrell said...

When Clinton was finishing up his last term, I kept hearing that we wouldn't see another GOP President for decades.

hombre said...

It is interesting that our so-called "intellectual leaders" have joined the mediaswine in abandoning even the pretext of observing and thinking objectively.

Scott M said...

Can you poke someone if you're being cruelly neutral? :)

RecChief said...

Justices that always work from the answer backwards.

That is dead on. I'm going to remember that description. That's perfect.

George said...

The real danger is the Ds losing the Senate, Ginsburg retires, and Reid breaks every existing Senate rule to get her confirmed before the new Congress is seated.

The Cracker Emcee Refulgent said...

"When Clinton was finishing up his last term, I kept hearing that we wouldn't see another GOP President for decades."

When Clinton was finishing up his last term, I wasn't seeing 2/3 of the people ahead of me in line at the grocery store using EBT cards. And that's no exaggeration.