Three Up, Three Down

With the Alito hearings coming up, the LA Times Sunday editorial section (aka, "Current") hired some heavy hitters to put it all in context. They've got Edward Lazarus, former clerk to Justice Blackmun and perhaps the best popular writer on the Court around, and Cass Sunstein, highly-regarded liberal law professor (and friend of mine).

Lazarus notes the modern battle over Court nominees began with Robert Bork. Before his hearings, someone with his record would have been a no-brainer, but now the fight is over politics, not qualifications. And the Democrats have essentially been playing defense for decades, hoping to hold onto the precedents set by the Warren and Burger Courts.

Lazarus notes the Republican response. Nominees now have to say as little as possible, and claim they have an open mind and a great respect for precedent. (Democrats will likely have to do this, too, if they face a Republican Congress.)

The irony, and Lazarus seems to miss this, is the most important rulings that the Dems insist are "mainstream" usually amount to cases where the Court gave the finger to the public. In particular, Dems want to make sure Justices will 1) not allow the slightest hindrance on abortion and 2) allow people to judge others as much as possible by race.

Oddly, Lazarus thinks Bush's actions may have given the Dems an opening to successfully attack Alito. He feels the recent revelation of warrantless wiretapping can be portrayed as a threat to our way of life, and Alito can be portrayed as a Justice who will allow Bush whatever power he wants. This is simply wrong. First, most Americans are hardly upset at the surveillance (most favor it, in fact). Second, tying Alito to allowing any damn thing Bush wants just because he fought for the President in the Justice Department (i.e., did his job) and deferred to the executive branch in some cases as a judge (oh my) will be a stretch. Third, there are a lot of things a Justice will decide over the decades he serves, and the division of powers is probably not in the top ten--in any case, it's usually more a battle between the Legislative and Executive branches, with the people as referee.

Sunstein, on the other hand, says nothing too controversial, and that's the problem. I can't disagree with his general thesis, but then, I'm not sure anyone can. He notes the Court is important because it represent the rule of law, and stands as a bulwark for our rights and freedoms if the other branches go too far. But he also notes sometimes the Court tries to set policy when it should defer. True enough, and these are important factors we should consider when any nominee is voted on.

But just how do you tell which way the Court should go? Maybe a few decades after the fact we can guess, but during controversial times, who knows? Sunstein suggests a number of mistakes the Court has made (following his thinking in Radicals In Robes) but I hardly agree with his list. For instance, he feels the Court has "exceeded its proper bounds" in striking down affirmative action programs and campaign finance regulations. Come again? I think there is a solid (nay, winning) Constitutional argument that many, perhaps most, affirmative action programs should be struck down. As to Campaign Finance Law, which drives a stake into the heart of the First Amendment by allowing direct regulation of political speech, it's an outrage that any court anywhere has allowed any of it.

And speaking of the courts, the Times' editorial page predictably chimes in regarding the Florida State voucher opinion that we must have only public schools now, public schools forever.

The Times reasons it's not fair to allow parents to remove their kids from public schools using vouchers. The kids who are getting away have to be tossed back into the schools that the parents believe are failing. You see, private schools aren't held to the same standards, so when the parents figure a private school is better for their kids, they have to be protected from themselves. You get to buy from the company store using company scrip and that's that. In essence, protecting crappy schools and preventing any serious competition guarantees the equality that the state promises.