Question: Why did Roberts and Alito turn out so conservative? Answer: Partisan entrenchment

[ProSense]

Friday, June 29, 2007

Question: Why did Roberts and Alito turn out so conservative? Answer: Partisan entrenchment

JB

Over at Slate, Emily Bazelon points out that moderate legal academics were completely bamboozled by John Robert's understated and lawyerly demeanor. They figured that because he had the right temperament he wouldn't end up that far to the right. As Emily points out, this was just wishful thinking. We've seen the results this term. Roberts and Alito have taken very conservative positions in a number of cases; they have done so by twisting previous precedents rather than directly overruling them.

There was, in fact a structural explanation for these results that should have been obvious to anyone at the time. It was certainly obvious to me. First, President Bush had made clear throughout his administration that he planned to engage in a policy of partisan entrenchment. He wanted to appoint very conservative people to the federal courts who would further his policy objectives, and who would remain in place for a very long time. Second, President Bush faced a Senate controlled by his own party. The Congressional wing of the Republican Party was also very conservative and it also wanted a conservative judiciary. Indeed, Congressional Republicans helped bring down the Miers nomination because they feared that she wasn't conservative enough!

Given the combination of these two factors, it would have been miraculous if anyone other than a very conservative Justice emerged from the nomination process.

After the 2006 elections, the Democrats control the Senate. If Bush were to get another Supreme Court appointment, the structural elements in play would be very different. Bush is very weak in the polls and he faces a Senate controlled by the opposition party. It is likely that, under these circumstances, he could only succeed in nominating a relative moderate to the Supreme Court, someone like Kennedy, but certainly not someone like Roberts or Alito. I use Kennedy as an example because Kennedy was nominated in 1987 when President Reagan was weakened by the Iran Contra Scandal, and faced a Democratic Senate. You may recall that Kennedy was Reagan's third choice-- the Senate rejected Robert Bork, a strongly ideological conservative, and Douglas Ginsburg withdrew.

What is the moral of this story? Pay more attention to the structural background of judicial nominations, and less attention to whether a nominee sounds like a nice guy. Nobody should have been fooled by the Roberts nomination. If we pay attention to how partisan entrenchment works, we will follow the Who's advice-- we won't get fooled again.

Time to "start thinking about how to deal with the new era of wingnut judicial activism"

[mediaman007]

1. In other words, if the hard-line Right Wingers are not whining

about the nominee, one could assume that the nominee is someone like them.

[PurityOfEssence]

11. Always a good litmus test, at least for a starting point

Similarly, if they're praising a Democrat, she's probably either unelectable, way too far to the right or both.

[Hawaii Hiker]

2. Well, when a Republican, ANY Republican is the president

& the time comes to make a Supreme Court nomination, because of pressure from dregs like James Dobson, Richard Land, Tony Perkins (Family Research Council), among others, a Republican president feels compelled to nominate the furtherest right judge there is..

Make no mistake, if Rudy Giulani became president, despite HIS personal moderate views, he'd appoint the furtherest right judge(s) he could...He's not going to appoint a pro-choice candiate, NO way...And he likely won't appoint anyone who is strong supporter of 1st. Amendment rights..

In light of the awful Supreme Court decisions that came down this first full term of the Roberts/Ailito era, any Democrat should vote for whomever the Demcoratic nominee end up being (& yes, for you Hillary haters, that means YOU to, do you want any more Roberts/Ailitos on the court :mad:

I'm not a big Hillary fan either, but I'd vote for her & take Chelsea out on a date if it meant keeping a Republican from winning in 2008!...

[loyalkydem]

6. amen

preach.

[depakid]

3. completely bamboozled?

Please.

ANY lawyer (or academic) who was "fooled" isn't a person you'd want to take seriously.

[BlueManDude]

4. I'm tired of "brilliant" and "intelligent" and "accomplished" people being bamboozled by the RW.

[Jim__]

5. Anyone who can still be bamboozled by bush and his ilk is a complete idiot! - n/t

[ProSense]

7. Partisan:

hacks!

[sandnsea]

8. There is a coup going on

It started with the rich religious nuts like the Bradley Brothers who funded the John Birch Society; and then realized that mistake and went politcal instead with the Heritage Foundation and other right wing groups. It's really pretty simple. I'm not sure very many Democrats actually get it.

[LiberalFighter]

9. I hate it when someone says that the person is a nice person.

Too many times it is a sign that they can't be trusted.

[LiberalFighter]

10. If the Democrats do their job right they will be able to weasel the likes of Scalia and others...

to resign or suffer impeachment. There must be something to hang those sobs.

[TnDem]

12. Compare this....

Trading a retiring liberal Stevens with a current "moderate" Kennedy would be another win for the pugs...

[Lerkfish]

13. better question: who honestly thought they WOULDN"T?

what idiot would think they wouldn't be?

oh yeah, our dem leadership. Sorry, I forgot.

[cascadiance]

14. think there are many of us that were quoted as "crazies" on wingnut sites of the like here...

... that should now stand up and say "You SEE?!! We WERE the prescient ones! You SHOULD have listened to us at the time!"

I had the one post I'd made listed on this page quoted on a number of wingnut sites:

http://louisianalibertarian.blogspot.com/2005_07_01_archive.html#112183544279436250

I think I googled some other freeper sites that also quoted this same quote I made earlier...

calipendence (955 posts) Tue Jul-19-05 08:11 PM
Response to Reply #37
44. If you have to SHUT THE GOVERNMENT DOWN!
Edited on Tue Jul-19-05 08:12 PM by calipendence

COMPLETELY DOWN! Fillibuster *EVERYTHING* if they try to go nuclear on you! This is the fundamental battle we've all elected you to fight. This is where we expect you to fight to your fullest abilities to win!

Don't let any business go through the Senate or the House unless they pull back this nomination.

Thanks!

Yup, I might have been strident then on my suggestions to what should have been done about Roberts, but I still feel I was DAMN RIGHT!

I still say that if you want to measure Roberts vs. Rehnquist, Rehnquist did show he was more willing to support the constitution, even in some instances when he avoided ruling in a judicial activist fashion on things like corporate personhood, which WAS originally a VERY judicial activist decision (if you can call a distorted headnote of a case a "decision" that subsequent rulings were based upon). Roberts I'm convinced wouldn't be as respective of the constitution on future decisions regarding corporate personhood. He WOULD support corporate cronies over the constitution in those instances, UNLIKE Rehnquist!

[ProSense]

15. Kick! n/t

[ProSense]

16. Supreme Court proves to be ally for Bush

Supreme Court proves to be ally for Bush

[ProSense]

17. Kcik!

Bush spares Libby from prison

25 minutes ago

WASHINGTON - President Bush spared former White House aide I. Lewis "Scooter" Libby from a 2 1/2-year prison term on Monday, issuing an order that commutes his sentence.

<...>

Those options are dwindling, however. The most likely move is an appeal to Chief Justice John Roberts, but it's unlikely that Roberts would overturn a unanimous ruling to spare Libby prison. Barring such an intervention, it seems only Bush could spare Libby prison time.

Roberts is a Bush appointee but judicial politics haven't helped Libby so far. U.S. District Judge Reggie B. Walton, who sentenced Libby and refused to delay the prison term, was a Bush appointee. Two of the three appellate judges who denied Libby's request Monday were appointed by Republicans.

What would an appeal to the SCOTUS yeild?

Bush or SCOTUS, Libby is free. The take over is complete!

[EndElectoral]

18. Anyone's a fool thinking they wouldn't be wacko right. Why Dodd voted for Roberts I've no clue.