A “liberal Scalia” is exactly what those who would like to see a less right-wing Court don’t need. Oh, yes, we need an intellectual heavy-weight, and it would be great to have someone who has a gift for rhetorical flourishes — someone whose opinions can be appreciated by educated lay-people as well as lawyers, and who can convey a constitutional vision that goes beyond individual cases.
But a “liberal Scalia”? Bah. Scalia has been surprisingly ineffective on the Court. As I wrote over 5 years ago when Scalia was a plausible candidate to replace the then-ailing Chief Justice Rehnquist,
Scalia’s opinions (especially his dissents) are an object lesson in how to alienate your colleagues. He is so convinced of the rightness of his often-extreme views that he thinks anyone who disagrees with him is stupid – and he frequently says so (see this opinion, in which he famously opined that Justice O’Connor’s views were “irrational” and “cannot be taken seriously”). Predictably, the result is that Scalia is marginalized within the Court, a perpetual right-wing dissenter who at this point has so irritated the other Justices that he couldn’t generate consensus around his views even if he wanted to.
Scalia, for all his intelligence, is a dreadful politician. And the Justices who have really shaped the direction of the Court over the last few decades — Earl Warren and William Brennan on the left, William Rehnquist on the right, and yes, in recent years, John Paul Stevens — have been superb politicians. We need someone who can not only articulate a vision, but who can persuade other Justices to sign onto it. After all, a constitutional vision doesn’t much matter if it only garners a couple of votes. (Justice Thomas has perhaps the most clearly-articulated constitutional vision of any Justice on the Court. And so what?)
Of the rumored short-listers, all of whom are super-smart, eminently qualified, etc., there is (as far as I know) only one who has demonstrated the kind of political ability the job calls for. And that’s Elena Kagan, currently the Solicitor General. She took over as Dean of Harvard Law School at a time when the school was falling apart at the seams, riven by left-right acrimony in both the faculty and the student body that threatened to consume the school. Previous administrations had utterly failed to solve the problem, either letting it fester or making it worse. And somehow, Kagan made it better. Of course there are still disagreements, but she left the school a much better-functioning place than she found it, and she has garnered accolades from left, right, and center because of her work there.
Now, there are some on the left who think that Kagan has proven too enthusiastic about executive power to be nominated. Coupla things there. First, the head of the executive branch selects the nominee. So I wouldn’t anticipate a nomination of someone who has been pushing a much more limited view of executive power. It’s just not going to happen. Second, it’s important to bear in mind that Justices do tend to evolve once they’re seated. Harry Blackmun probably moved the furthest from right to left, but Sandra Day O’Connor unquestionably left the Court as more of a “moderate” than when she arrived, and John Paul Stevens ended up quite a bit more liberal in some areas (e.g., death penalty and affirmative action) as well. Particularly for someone like Kagan, who does not have a long paper trail on these issues, one shouldn’t necessarily assume that just because she told Lindsey Graham what he wanted to hear in order to get confirmed as Solicitor General, those views are etched in stone for all eternity. And, at only 49 years of age, Kagan has lots of time to “evolve.”
Finally, some have expressed concern that Kagan would be tougher to confirm than, say, D.C. Circuit Judge Merrick Garland (who has been sort of pre-approved by some influential Republicans like Orrin Hatch). So what? All Obama needs is 50 votes plus Biden, and he’ll certainly have that for anyone he nominates — the Republicans are not going to filibuster a Supreme Court nominee. The Republicans will make some noise about whoever Obama nominates. Who cares — let them. A Supreme Court nomination is not the occasion to try to placate your critics by throwing them a bone. No president has taken that approach in recent years; I can’t imagine why Obama would choose to be the first.
Pretty much by definition, Liberals are intelligent, thoughtful, and intellectually honest – the opposite of Scalia. Offhand, I can’t think of any Liberal who is Scalia-esque – can you?
Well, there are conservatives who are intelligent, thoughtful, and intellectually honest and there are some insufferably doctrinaire liberals.
But there are only a few actual true Conservatives left – David Brooks comes to mind.
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p>Who else?
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p>As to “insufferably doctrinaire liberals” – who?
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p>I have the urge to single out some of my favorite BMG posters–I will be strong and resist it!
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p>TedF
Well, I hope I’m on that list!
Well, KBusch, you’re definitely on my list of favorites, but as for whether you’re on the list of insufferably doctrinaire liberals–my lips are sealed!
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p>TedF
Comes to mind.
Really, Manny? Scalia is not just sometimes wrong, but literally the opposite of intelligent, thoughtful, and intellectually honest? Have you read many of his opinions, or heard him speak?
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p>TedF
Political campaigns funded with infinite money by corporations, infinite imprisonment without recourse, and so forth. Awful stuff.
Look, I would not have voted with Scalia on very many decisions. But there’s a difference between wrong or even very wrong and unintelligent and dishonest, right? I mean, we don’t like it when the Republicans demonize nominees of Democratic presidents.
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p>TedF
From Scalia’s dissent in Lawrence vs. Texas:
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p>Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda, by which I mean the agenda promoted by some homosexual activists directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct. I noted in an earlier opinion the fact that the American Association of Law Schools (to which any reputable law school must seek to belong) excludes from membership any school that refuses to ban from its job-interview facilities a law firm (no matter how small) that does not wish to hire as a prospective partner a person who openly engages in homosexual conduct. See Romer, supra, at 653.
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p> One of the most revealing statements in today’s opinion is the Court’s grim warning that the criminalization of homosexual conduct is “an invitation to subject homosexual persons to discrimination both in the public and in the private spheres.” Ante, at 14. It is clear from this that the Court has taken sides in the culture war, departing from its role of assuring, as neutral observer, that the democratic rules of engagement are observed. Many Americans do not want persons who openly engage in homosexual conduct as partners in their business, as scoutmasters for their children, as teachers in their children’s schools, or as boarders in their home. They view this as protecting themselves and their families from a lifestyle that they believe to be immoral and destructive. The Court views it as “discrimination” which it is the function of our judgments to deter…”
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p>Great stuff, marvelous.
Wrong decision–got it. But unintelligent or intellectually dishonest? Really? It seems to me that you are allowing the strengths of your own convictions to blind you to the fact that people with other ideas can form their views intelligently and hold them honestly.
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p>One of the rites of passage for people first learning about constitutional law is to confront the problem of substantive due process–why is Griswold v. Connecticut, for example, right, but Lochner v. New York wrong? I think we can regard someone’s willingness to say that a case like Griswold was perhaps wrongly decided as a mark of intellectual honesty, but I remember many left-leaning students, including myself, who were unwilling to do it. Right-wingers have made a big fuss recently about getting rid of the whole notion of substantive due process. But do you know who recently rejected the right-wing challenge on the grounds that substantive due process was settled as a matter of long-standing precedent even if doctrinally problematic? Justice Scalia:
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p>TedF
As a joke, I thought it was ok.
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p>As an honest statement, I think it’s immature, condescending and wrong.
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p>It’s not enough to accept that people have different perspectives, experiences and interests? People you disagree with have to have to be mentally irregular en masse?
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p>Both sides are guilty of this type of depiction and it’s what really turns people off about politics, the inability to simply have a disagreement without personally demonizing those with whom you agree.
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p>Seriously, grow up.
I have taken the same view. I triple dog dare the Republicans to oppose someone as obviously qualified and substantive as Kagan. Actually, I take that back, because as the health care debate showed to my satisfaction, the Republicans in Congress, as a group, have no shame.
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p>TedF
On confirmation prospects:
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p>Currently conventional wisdom is that the President feels emboldened by the health care victory to push through a more traditionally liberal justice rather than ‘throw a bone’ so that logic is leading towards Kagan or even Wood. Where I disagreed with David’s assertions previously, and still have some reservations, is that Congress, particularly those Senators in tough re-election campaigns including the Majority Leader, might not be so willing to make a tough vote and might encourage the President to seek a quick and easy confirmation battle. A quick and non contentious confirmation would help both sides as well since they each can walk away saying they were bi partisan and effective in Congress. Again that points towards Garland over Kagan-though Kagan’s conservative backers along with an unwillingness on the Republican’s part to appear as obstructionists could serve to weaken the GOP resistance.
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p>On defining ‘liberal Scalia’:
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p>What I meant, and I think what most people mean when they say that, isn’t a bombastic loner who alienates his colleagues, albeit a liberal one, but rather someone with the intellectual chops of Scalia and able to make and defend the liberal philosophy conclusively. Diane Wood or Kagan could do that in a way Sotomayor or Garland cannot. That is what I meant.
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p>On executive power:
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p>Your right on the money here, neither ‘side’ seems committed to curbing governmental power in any real way, one side favors state coercive power to preserve ‘traditionalist’ morality and to wage war while the other side favors it when it comes to eminent domain or executive orders. It seems that no matter who is in charge, constitutional blasphemies such as signing statements, EO’s, and war powers are a normal facet of the modern Presidency and will not be constrained by a judiciary overwhelmingly in favor of those powers. The conservatives inflate the commander in chief clause to establish a unitary executive, while the liberals argue that democratic (small d) majorities grant the executive powers to govern, essentially a populist reasoning. Both are wrong from a con law standpoint, but both are quite popular.
I agree with your analysis with respect to the internal working of the
PolitburoCourt, but is that as far as the impact of a justice needs to be considered? Whatever his ineffectiveness with respect to his colleagues, Scalia has helped to convince a good fraction of the country that the Court should interpret the constitution according to the meaning of its words at the time they were written (funnily enough, that always seems to be consistent with his own position on various issues, but never mind), that jurisprudential issues can, in general, be reduced to correct and incorrect “with-us-or-against-us” conclusions, and similar broad assertions. This has a significant impact on the way the Court and its mission is perceived in the broader society and can become self-fulfilling insofar as it changes the terms of debate. Scalia has proved adept at using his bully pulpit to advance his agenda in the society at large. Liberals, one might argue without discounting your assessment, would do well to have a comparable advocate.that’s sort of my point (though stated differently). As I said in the post, I do want someone who, like Scalia, can articulate a clear, understandable to everyone, constitutional vision. Some of the Court’s current “liberals” have not been able to do that, and some of the reputed short-listers would most likely be similarly ineffective. But I’d also like someone who can implement that vision. It’s all well and good to give speeches at law schools and have people clap enthusiastically, but it would be nice to add in the ability to write a progressive constitutional vision into the U.S. Reports. Scalia will not be on the Court forever, and when he departs, his impact will quickly fade IMHO. Right now, whatever influence he has over the larger debate on constitutional interpretation comes through the force of his personality, not through his success in winning over his colleagues. The former depends entirely on his staying on the Court; the latter doesn’t. Earl Warren’s and William Brennan’s impact on constitutional law is still clearly felt decades after their deaths; William Rehnquist’s will be too. Not so for our friend Nino.
He will be fondly remembered by fellow loudmouths wherever they may be for generations, however, I dare say.
If by ‘liberal Scalia’ you mean, simply the apotheosis of liberal mindshare, in a position of some moral and intellectual suasion, then we already have a ‘liberal Scalia’…
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p>… His name is Stephen Breyer.
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p>If.. however… you simply mean the liberal version of a tenacious and deeply dishonest machiavellian… than no, we don’t have that. Furthermore, I contend, that such is antithetical to liberal idealogy and… thus… we cannot have that. Ever. That would be equivalent to finding a compassionate psychopath.
Greenwald: Kagan replacing Stevens would decisively shift the Court to the far-right ground on executive power & civil liberties that has been staked out by Bush and Obama.
I linked to that same Greenwald column in my post. He’s got a big bug up his behind about Kagan, Cass Sunstein, and anyone else who isn’t pure enough for him on executive power. But let’s be honest: as president, would you nominate someone who promised to tip the Court against you on the issue of how much authority you have? Like I said, it’s not going to happen.
OF course, recent evidence suggests that he is.
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p>This isn’t about Obama’s power. Kagan or whomever will be on SCOTUS long after the Obama Library is built and open.
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p>This is about Nixon’s power. Bush’s power….as well as Obama’s. I’d hope a guy who loves to talk about the call of history is going to be so craven.
Embarrassing for me, I didn’t even read the second half of your post. Just thought I’d toss Glennzilla into the mix after seeing comments referring to Kagan as a liberal.
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p>Looking at your counter-arguments, though, I don’t find much reassurance. If by “authority” you mean the broad ability to put programs into action, then sure a president wouldn’t want judges restricting that. But aren’t we talking about the power to spy on, detain, and/or kill anyone in the world? Is all presidential power in one big lump? Or is this the neocon case that prosecution of any war simply demands an unaccountable executive? Either way it’s very pessimistic about the future.
And it is that the executive can do all of those things: assassinate U.S. citizens by presidential decree, imprison them indefinitely without trial or charge, and kidnap them and transport them to a third country for whatever purpose. That is what his actions to date show. Therefore, it is reasonable to suspect he will nominate someone with similar ideas.
No, not the 1917 sort. The 1776 sort. The kind that believed in the inherent rights of the people. I care not whether the person with their foot on my neck claims to be Republican, Democrat, Tea Partier, Conservative, Liberal, Progressive or voodoo chief.
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p>I want someone that says, “Liberty!, What a concept.” Do those revolutionaries exist anymore? Gone? Passé? On a watch list? Detained?
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p>No doubt Elena Kagan will be the nominee. She fits the mold, of Ivy League, government service. Her arguments for indefinite detention should go down well with the other side of the tag-team match, the Republicans. Too, the Senate already voted for her as Solicitor General by 2/3.
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p>“No people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffusd and Virtue is preservd. On the Contrary, when People are universally ignorant, and debauchd in their Manners, they will sink under their own weight without the Aid of foreign Invaders.
Samuel Adams, letter to James Warren, 1775
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You don’t want a 1776 revolutionary because what you describe only exists in Disney movies. A 1776 revolutionary was all about the rights of the elite rich here instead of there — but Native Americans, slaves, and women are best off treated as property. Even white men who don’t own land weren’t really people. You’re saying you want a 1776 revolutionary, the kind who didn’t think the United States should be a cohesive country (see Articles of Confederation), that non-English speakers don’t really have a right to their territory, and Jews and “Mahometans” aren’t really people?
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p>No, you want an idealized version of a 1776 revolutionary that is actually a modern sort. And here’s a hint — they probably wouldn’t be conservative.
Certainly the new nation inherited much good and bad from English government. It took many years of toil and blood to get to a higher level of individual freedoms. Ideals are like that – looking to come more to perfection. We aren’t there yet and turning the country over to oligarchs won’t get us there.
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p>I don’t really understand your reference to the Articles of Confederation. Also known as “The Articles of Confederation and Perpetual Union”, it was replaced by the Constitution on June 21, 1788. (More toward the ideal.) I don’t know of any entity that now abides by the Articles.
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p>As for no rights of non-English speakers, Jews and Muslims aren’t really people… Why would I think that? When I think of the Revolutionary War I think too, of Von Steuben, who couldn’t speak English, Abraham Levy; Haym Salomon, Francis Salvador, Aaron Lopez, all famous Jews of the Revolution; Yusuf Ben Ali, Bampett Muhamed, likewise Muslims. Did they know what they were fighting for? Boston history tells us of the Battle of Bunker Hill’s ethnic makeup, but that’s a long story.
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p>Without ideals, life is gray. I want out of the film noir. Let’s have Technicolor!
The American males who could vote early in our Republic were much more likely to vote for men of distinction, for members of the “natural aristocracy” (a term from the time, by the way) than for people representing “the people”. If they didn’t find it inconceivable, they surely would have been horrified at California’s system of referendums. “Democracy” wasn’t always even a positive term back then: It smelled too much of mob rule — and mob rule was something they feared.
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p>Remember, after all, Benjamin Franklin was not typical for his time; he was somewhat of a radical and precisely because he favored democracy so much.
You’re calling for a 1776 revolutionary, when you clearly don’t know what the phrase means. The overly decentralized Articles of Confederation (assembled by the “revolutionaries” that you idolize) weren’t an English idea, but an American failure. A failure that closed the franchise to anyone who wasn’t a white male Christian landowner.
But then again, there were all those Jewish signers of the Declaration of Independence….you mean there weren’t? Rare is the fighting force that kept people from dying on the battlefield based on religion. Doesn’t mean they were respected for more than cannon fodder.
someone who is extreme in his positions, and a jerk about it, to be simple in description? I would love to have someone who is a vigorous liberal, and a counter to the glut of very conservative jurists we have seen placed on the Court recently, such as Thomas, Roberts, and Alito. Democrats hold the Presidency, and the Congress, and it’s their right to pursue policies and individuals that reflect their beliefs, and I, as a Democratic voter, have the right to expect that my leaders choose people that reflect my voting pattern. So, nominate a liberal jurist who would support our philosophy, and not look for one who “won’t upset Republicans”. Roberts and Alito upset me a lot. How well did trying to appease Republicans work during the health reform debates? Not one bit comes to mind.
It takes 41 Senators to kill progress. It takes 5 Justices. So, while this obviously depends on the specifics of how many seats each side controls and any idiosyncracies of individual Senators or Justices, as a general rule a good Justice is worth at least 8 Senators. Now obviously, Merrick Garland is no Scalia or Thomas, but if I knew exactly the price of getting Wood or Kagan in over Garlnd, and it was 3-4 Senators, I’d take the deal.
This is unbelievable.
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p>
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p>”Scalia envy”?? You know what, lame NYT reporter Peter Baker, f&*$ you. I’ve already explained why this whole “Scalia envy” thing is BS. Furthermore, the idea that Ginsburg is “closest to what they [lefties] were looking for” is quite silly, given Ginsburg’s record on the Court. As I’ve said elsewhere, Ginsburg is a reasonably reliable lefty vote, and her opinions are well-written, but she has mostly written on highly technical matters like civil procedure and tax law. I cannot, offhand, think of a single major opinion, majority or dissent, where she has really struck a blow for lefty-hood, whereas I can think of several Breyer opinions in that vein, the most obvious being his dissent in U.S. v. Lopez from his very first year on the Court. [Disclosure: I clerked for Breyer the year before he was appointed to the Supreme Court.]
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p>Honestly, where do they get these reporters?
While “Scalia envy” may be a lame phrase, I hardly think this article or the others you’ve linked to have put forward the notion that the left wants an blowhard liberal who won’t have influence on the court.
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p>The key paragraphs in this article is not the one you cited, it’s these:
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p>I don’t care if it’s Ginsburg or Breyer that currently best represents the left on court, when there’s an opening and a Democrat is President, I want a real liberal nominated. You may be satisfied with someone who clerked for Thurgood Marshall and mirrors the politics of someone appointed by Gerald Ford, I’m not – I want another Thurgood Marshall.
Well, that’s where you and I differ. Thurgood Marshall was the most successful civil rights lawyer in this country’s history, and perhaps the most influential litigator of any kind. But as a Justice, he was less effective. He wrote ringing, heartfelt dissents, but dissents don’t accomplish much beyond making the losers feel better.
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p>And so I’d say that you have missed the point I was making. As I said in my post:
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But, I’m not sure I agree that he didn’t accomplish much besides making the losers feel better.
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p> Not too shabby I’d say, but in decades on the court, maybe not enough to qualify as an extremely effective justice. I didn’t miss your point, I argued (possibly incorrectly) that someone like Marshall is exactly what you should want – someone with vision and the ability to move the court and the country towards that vision, especially if some hard left justices are appointed along their side.
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p> What I’m confused by is why you think Kagan is that person.
Scalia is open about his homophobia and delights in writing about his conservative beliefs.
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p>It would be just awful if a Democratic nominee for SCOTUS, on TV, were to say things like, “gay Americans are citizens–first class citizens who deserve to marry the person they love, just as straight Americans can.”
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p>How terrible it would be to hear a great liberal legal scholar tell the Senate, “Corporations are not persons, and the people–the real people who live and work and pay taxes–are well within their rights to use the government to guard against corporations unduly influencing elections or abusing the environment!”
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p>And I would fear for the very foundations of the Republic if a SCOTUS nominee were to say, “When a court uses the wording of a law to subvert the very intent of the law, as Alito did in Ledbetter, that is an activist judge of the worst kind!”
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p>Here endeth the irony
These confirmation hearings are a chance for great liberal minds to speak directly to the public about why liberalism will bring progress to the vast majority of Americans, why liberalism will bring a sense of fairness to the law, why over the course of history it is liberalism and progressivism that brought out the promise of America, and delivered on the dream of America, while conservatism preserved what was unfair and unjust.
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p>If our liberal goals and philosophy are so much better than conservatism, why is the best way to advance this philosophy through judges/scholars who keep their philosophy hidden from the public?