On the Wrong Side of 5 to 4, Liberals Talk Tactics

[babylonsister]

http://www.nytimes.com/2007/07/08/weekinreview/08greenhouse.html?ex=1184558400&en=7fd2d7f617ca302d&ei=5065&partner=MYWAY

On the Wrong Side of 5 to 4, Liberals Talk Tactics


By LINDA GREENHOUSE
Published: July 8, 2007


IN the old Shel Silverstein cartoon, two inmates stand side by side, spread-eagled and shackled hand and foot to the wall of a windowless and impossibly tall prison cell. One turns his head and says to the other, hopefully: “Now here’s my plan.”

Liberals talking about the Supreme Court in recent days are a bit like those cellmates — both in the dire nature of their plight, now that the conservative victory at the court has revealed itself in full dimension, and in their belief that there must be something they can do about it.

Political activists within the liberal camp came up with a plan quickly enough: to “take back the court,” in the words of Norman Lear, a founder of People for the American Way, which sent 400,000 e-mail messages last week as part of a campaign to make the court a central issue in the 2008 Senate and presidential elections.

In mid-June, before the final flood of decisions but after the court voted 5 to 4 to uphold the federal Partial-Birth Abortion Ban Act, the American Civil Liberties Union Foundation mailed an appeal in envelopes with a line from Justice Ruth Bader Ginsburg’s dissenting opinion in that case, her complaint about the majority’s resurrection of “ancient notions about women’s place.”

Such efforts may help raise money and win elections, but the chance that they will actually change the court, in the near or medium term, is remote. Even if the Democrats win the White House and hold the Senate, the court’s demographics are likely to trump politics. The average age of the four more liberal justices is 74; the five conservatives average a youthful (for federal judges) 61, with Chief Justice John G. Roberts Jr. the youngest at 52.

Confronting that reality, some liberal legal scholars suggest that beyond political tactics, what the left urgently needs is a long-term strategy built around an affirmative message of what the Constitution means and what the enterprise of constitutional interpretation should be about.

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[AndyTiedye]

1. In Other Words, We're Fucked!

[DeSwiss]

2. Its really quite depressing if you let yourself think about it too long...

...and I find it helps if you have a hobby.

[ProgressiveEconomist]

3. Would plans for judicial impeachment should Democrats build bigger majorities

next election make sense? There is one precedent for impeaching a USSC justice: Samual Chase.

Remember, having tried and failed to impeach Justice William O. Douglas did not disqualify Gerald Ford from becoming President.

There may be adequate grounds for impeaching one or more of the current crew on the USSC.

Scalia and his nepotism-appointed offspring may have had many conflicts of interests in cases where Scalia cast the deciding vote.

And the sophistical Bush v. Gore decision seems adequate grounds for investigation leading to possible judicial impeachment of those voting in the majority for Dubya. After all, without Bush v. Gore there would have been no President Dubya, and therefore no Alito and no Roberts.

I wonder whether there were ex parte negotiations between James Baker and Scalia in 2000 about just who would be appointed if Scalia and company "jumped the shark" to select Dubya.

[ljm2002]

4. Scalia's conflict of interest...

...would be my first thought. His comments on his having gone hunting with Cheney, just days before hearing a case involving him were: "It is absurd for anyone to question my impartiality". And his assertion was simply accepted, instead of being met with the outraged ridicule it so richly deserved.

Also, both of the newer justices, Alito and Roberts, said they have utmost respect for stare decisis as a bedrock legal principle. Yet both have voted with the majority on major upheavals to that very principle. In other words, they demonstrably lied.

Of course, the 2000 decision was indeed a classic case. As Bugliosi pointed out in "None Dare Call It Treason", they implicitly acknowledged the illegitimacy of the decision by declaring that the decision "should not be used as a precedent". And of course, they also gave it away when they issued a stay on the vote counting, because it could do irreparable harm to ... Bush. Somehow, they could not formulate the converse proposition, namely, that stopping the recount would do irreparable harm to ... Gore.

Evil idiots.

Even if impeachment did not succeed in removing them, it could weaken them and show them up for the partisan hacks they really are.