Dahlia Lithwick looks at the judiciary system
Dahlia Lithwick writes about the masterful attention Republicans have given to the judicial system in The Washington Monthly:
For anyone considering the 2012 election’s importance to the future of the American judiciary, one fact stands out: next November, Ruth Bader Ginsburg will be seventy-nine years old. If a Republican wins the presidential election, he or she may have an opportunity to seat Ginsburg’s successor, replacing the Supreme Court’s most reliably liberal jurist with a conservative. That would mean that the Court—currently balanced almost elegantly between four liberals, four conservatives, and the moderate conservative Anthony Kennedy—would finally tilt decisively to the right…Kennedy, who is ranked tenth in that study, will be seventy- six next November.
…
But it’s not just the Supreme Court that would tilt further right. The high court only hears seventy-some cases each year. The vast majority of disputes are resolved by the federal appellate courts, which are the last stop for almost every federal litigant in the country. And the one legacy of which George W. Bush can be most proud is his fundamental transformation of the lower federal judiciary—a change that happened almost completely undetected by the left
Beverly Mann responds in an e-mail back to me after I sent her the link:
I love this article. My favorite paragraph is:
Why have the Republicans been so much more effective at dragging the judicial branch rightward than Democrats have been in yanking it back? Focus, mainly. Since the Meese revolution of the mid-1980s, the GOP has been better at constitutional messaging, better at mobilizing the electorate, and better at laying out a judicial vision than liberals, who still seem to believe that unless the Supreme Court overturns Roe v. Wade (or perhaps the Affordable Care Act), judges are not really a voting issue.
It’s dismayed and enraged me for years—at this point, decades—that most of the vocal left (the people who gain media attention) act as if the only legal issue of real importance is abortion rights. Okay, now some of them have added torture and Gitmo as issues important enough to mention, but that’s pretty much it. But actually, it would be hard at this point to even explain how deeply, how profoundly, how thoroughly, these judges and justices have changed the very system of law in this country, largely by simply routinely, categorically denying access to federal court, by erecting ever more unattainable, ridiculous, and complex procedural requirements to have a federal court decide a case “on the merits” rather than on a procedural issue—or by quietly denying meaningful court review if access is granted, by pretending to have granted it but by issuing a formulaic ruling making clear that what happened was that the outcome was never really at issue and that the excuses for it were filled in later.
The placement of conservative judges is certainly active at the state level.
When a state can block a defendent’s argument of “mens rea” and “actus rea” as a defense, by forcing all such arguments under the insanity plea thereby placing the burden of proof upon the defendent and circumventing due process, we are all threatened by such actions. It is amazing how the judicial system works, its procedural mistakes which would count against you, its slowness after conviction which can run into a decade before a case will rise to a review. It was not that long ago when Gideon wrote SCOTUS seeking redress, finally achieving it, and in the end setting a standard for legal representation in courts.
And yet if Obama tries to appoint anyone but a center-right conservative to the bench (and probably even then), the utlra-right will howl and cry foul –“he’s packing the court with L-I-B-E-R-A-L-S and Socialists!” Perhaps Obama (and the press) might be better served by ignoring the straw men and outright lies of the extreme right for a change.
HARM
you may have something there. an article about Obama in an upcoming New Yorker seems to show a man who will run crying for his mother’s skirts if someone calls him a Liberal. after all the only thing that matters is the daily changes in the poll numbers, right?
You act as though Obama nominates centrists because he’s afraid of name-calling, rather than his actual entrenched centrist beliefs.
And yes, that is the reason liberals have not yanked the court back — because there *aren’t* any, and haven’t *been* any, in at least 12 years, and more like 30.
Here is the other thing. There is little question that the conservatives on the court have favored the business and monied interests, but they have not exactly taken away all liberty from Americans. Abortion is the litmus test because at the end of the day, most Americans do not see much difference between conservative and liberal at least outside the civil rights arena
Tiercelet
i don’t think obama has any entrenched beliefs except the importance of getting elected. this is based on my observations over the last three years. but the New Yorker article (sorry, no cite, I think it is next weeks) may or may not leave you with the same feeling.
not at all sure what there “aren’t any” of. in any case it is a damned tragedy that the Bill of Rights is now a “liberal” cause. I don’t keep close enough track to know which justice voted which way, but from reading more than a few cases and a general sense of where the law has gone in the past fifty years, i don’t have a whole lot of respect for the Supreme Court as an upholder of either simple justice, human rights, or the Constitution as a safeguard for democracy.
Terry
i think i agree with you.. but not sure i understand. abortion is the test that liberals and conservatives pay attention to, while even more basic rights are quietly mooted.
i doubt if even Stalin took away “all” rights. Just enough of them so he could eliminate his enemies and potential enemies while the vast Russian population slept. Obama just signed a law that would do that in this country. Of course he had “grave reservations” but couldn’t afford to look weak on terrorism.
@coberly and Tiercelet,
You both bring up some great points.
Where have all the “socially moderate” pro-science conservatives of yore gone?
Why are most so-called “liberal Democrats” today little more than socially moderate Republicans?
Why is defending the Bill of Rights (aside from 2nd Amendment) now seen by the general public as tantamount to coddling terrorists?
When did the terms “public good”, social justice” or even “due process” become Leftist code words to be reviled by Real Americans?
Obama just signed a law that would do that in this country. Of course he had “grave reservations” but couldn’t afford to look weak on terrorism.
Exactly. Disgusting and an act that provides further evidence that he and Congress have little regard for the Constitution or Bill of Rights –and no moral backbone. But I guess I’m just a racist wingnut for thinking that.
Amen.
There are two parties. The R’s are united. Their sole interests are 1 in protecting large corporations from governmental regulation and paying taxes and 2 protecting the super rich from the same. They follow the same strategy as the wealthy in the south in 1900. They win the White vote by scaring them with one invented “threat” after another, including the threat of Black tyranny. The have no interest in civil rights unless they threaten the super rich and large corporations.
The D’s are divided. They have no one constituency. So they appeal to several special interest groups. Feminists, Blacks, College professors, environmentalists, “Hispanics,” etc. and try to put them together to form a majority. With the exception of some college professors, all of these groups want financial spoils. None is interested in civil rights.
Neither party cares at all about the interests of White working men, which both parties see as their greatest enemy. Since Wwm form the largest minority in the USA, neither party cares about the interests of the majority.
A Marxist party that had tons of money might be able to blow up all this racist and sexist nonsense from both sides and form a majority coalition of all workers regardless of race versus the 1%. I.e., something like what the Labour party was since when it was founded in 1900 till it became a copy of the US Dems under Blair.
But that’s a fantasy that won’t happen. So expect the situation to get worse.