The end of Brown?

The Opinion Journal: "Brown v. Board of Education has not been overturned".

The New York Times: "Resegregation now" - Brown v. Board of Education has been overturned.

Juan Williams: farewell and good riddance to Brown v. Board of Education.

Much has been made of the Supreme Court's decision regarding the combined cases of Louisville and Seattle - as evidence of a return to segregation, and the death of equality. Williams reminds us that the truth is that "better schools are needed for all children - black, white, brown and every other hue - in order to foster a competitive workforce in a global economy."

The Supreme Court's decision this week highlights the need to turn away from the simplistic rhetoric of constructed 'diversity' and 'preparing our children to live in a pluralistic society', and to embrace instead the difficult questions that must govern our pursuit of a better education system for all. This is the true legacy of Brown - whose goal was never simply "seating black children next to white children in school", but rather the forcible recognition of the right of each child to equal protection under the law. This goal has not yet been achieved, but programs like the ones in Louisville and Seattle are not the way to move forward.

Two kinds of conservatives

In a Washington Post op-ed today, Cass Sunstein sketches a fascinating portrait of the Roberts Court. "The real divide on the Supreme Court", he writes, is not between 'liberals' and 'conservatives', but rather "between two kinds of conservatives". Sunstein terms these two conservative coalitions the 'minimalists' (Roberts and Alito) and the 'visionaries' (Scalia and Thomas). This divide can be clearly seen in the writings associated with this week's decisions - as in FEC vs. WRTL, Morse v. Frederick, and Hein v. Freedom from Religion Foundation. In all these cases, the minimalists and the visionaries have concurred on the outcome, but differed in their reasoning. As Sunstein puts it,

"Alito and Roberts typically seek to preserve the court's precedents and to avoid theoretical ambition. By contrast, Scalia and Thomas are not cautious about jettisoning the court's precedents and rethinking them from the ground up."

Incidentally, there's an interesting contrast here between this characterization of Alito - as a moderating influence on the more 'visionary' brand of conservatism that already existed in the Supreme Court - and the hysterical media portrayal of Alito at the time of his nomination as completely 'out of the mainstream'. CFJ worked hard to counter that portrayal by pointing to Alito's restraint, commitment to precedent, and due deference to the law. His record to date has lived up to that record of modesty. And as Sunstein points out today,

"Alito and Roberts have surprised no one. Careful and lawyerly, and focused on the particular problem at hand, they reject huge changes in favor of small steps. But almost all of their small steps are going in the same direction."

FEC v. WI Right to Life: not such a disaster after all?

To follow up on the extremist reactions to this Supreme Court decision (as pointed out in my previous post), here's a more moderate analysis from Jay Cost. As it turns out, the effects of FEC v. Wisconsin Right to Life do not represent a clear-cut victory at all - either for free speech, or for the deployment of soft money for electioneering purposes thinly veiled using 'issue ads'.

Cost says, "the BCRA has been weakened here, but I do not think it has been weakened by very much." The effective impact of the Court's decision remains to be seen during the next election cycle, when it will become clear how narrowly the FEC will interpret and implement the Court-established limits.

Harvard Crimson off the deep end

Some of the assessments of the Roberts Court are so hyperbolic as to merit special notice. The Harvard Crimson's staff editorial of Apr. 22, 2007, is an example. In discussing the partial birth abortion decision, the Crimson staff called the concept of respect for human life, at least in the abortion context, "chilling". Here's the Crimson's exact wording:

From here, there can be no question of the court's intended direction, succinctly, albeit chillingly, put by the author of the majority opinion, Justice Anthony M. Kennedy: "The act expresses respect for the dignity of human life."

Am I the only one to find it absolutely remarkable that Justice Kennedy's fairly bland statement could be regarded as "chillingly" phrased?

But that's not all. The Crimson staff continues: "Despite the ignorant claims of the court's majority, intact dilation and extraction [i.e., partial birth abortion] can rescue women from grave medical situations." It might strike some as arrogant for the Crimson staff to dismiss a Supreme Court majority as "ignorant." But it is also, in this case, ironic. The legal claim of the challengers (the abortionists) was not that partial birth abortions were somehow necessary to "rescue women from grave medical situations". Rather, the claim was that partial birth abortions, while not the only safe abortion method available, might be relatively safer than other methods for some women in some circumstances. In other words, the question was not whether a woman could be "rescued" (assuming an abortion could do this), but how she would be "rescued." This is a decision on the same order as a decision between radiation, chemotherapy, and Laetrile for a cancer patient. Does the disallowance of Laetrile as an option have the "worst possible repercussions for American[s]," to borrow the Crimson's phrasing? Can we really say absolutely that Laetrile is necessary to "rescue" cancer patients? Or is it not rather another example of a medical option whose merits are debatable, in which case the regulatory authorities, at least under current law, get to make the call as to what is allowed?

Characterizing the Roberts Court

In the aftermath of the Supreme Court's handing down of five major decisions yesterday, many are trying to characterize the nature of those decisions and thereby to make sense of the landscape of the new 'Roberts Court'. Even a cursory examination of the news coverage is enough to confuse the ordinary reader, as interpretations vary widely in tone from despairing to rejoicing. Here's an example: comparing the first lines of two news stories describing the Supreme Court decision in FEC v. Wisconsin Right to Life.

The AP reported:

"Free speech rights take precedence over government restrictions on political advertising, the Supreme Court ruled Monday in a decision that opens the door for greater influence by interest groups in the closing days of an election."

The Washington Post wrote:

"The Supreme Court yesterday substantially weakened restrictions on the kinds of television ads that corporations and unions can finance in the days before an election, providing special interest groups with the opportunity for a far more expansive role in the 2008 elections."

These two opening salvos represent opposing points of view along the spectrum of opinion regarding the interpretation of this most recent Supreme Court decision. One emphasizes a victory for free speech; the other emphasizes a victory for big business and special interests. But this kind of divergence is only the tip of the iceberg; a certain amount of uproar and outrage dominates the response to Monday’s Supreme Court decisions.

Andrew Cohen laments the recent decisions as evidence of the Roberts Court’s being firmly "entrenched on the ground of the legal right". The St. Petersburg Times indicts the Roberts Court for ushering in a new "plurality for cruelty" in the Supreme Court.

But Roberts' opinion itself in FEC v. WRTL actually emphasizes the protection of free speech – and effectively rules that single issues should be allowed to be discussed in an open marketplace of ideas, regardless of time proximity to any election. This is in opposition to a popular interpretation of that decision, which decries its potentially far-reaching effects – allegedly, a huge increase in corporate- and union-funded electioneering, within some cursory limits (i.e. no explicit exhortations to 'vote for...' or 'vote against...' some candidate).

But in the face of some fairly stringent outcry regarding the Supreme Court's recent batch of decisions, it is worth remembering that the Roberts Court is in fact shaping up to be fairly deferent to the rule of law and respectful of the role of the legislature. We might more accurately and less inflammatorily call this approach "Conservative but incremental", as characterized by Tom Curry in yet another news source.

4th Circuit needs judges now

In an opinion article today in The National Law Journal, Carl Tobias correctly points out that the 4th Circuit needs judges now. Of the fifteen active judgeships in this Court of Appeals, fully one third are or soon will be vacant.

The three existing vacancies (among them the nation's oldest judicial vacancy, dating back to 1994) have been supplemented by Chief Judge William W. Wilkins' announced determination to assume senior status on July 1st. The fifth vacancy is expected based on Judge H. Emory Widener's indication that he will also step down once a suitable nominee is confirmed.

As Tobias points out in his opinion piece, this high number of vacancies is a threat to the practical execution of justice in the 4th Circuit.

"The pressure will intensify on the judges to resolve promptly, economically and fairly 5,300 annual filings. Indeed, the 4th Circuit now grants published opinions at the smallest rate (8%) and oral arguments at the next lowest (12%), which are crucial measures of appellate justice, although it continues to decide cases as fast as the 11 other tribunals, requiring only an average of 9.5 months."

While the 4th Circuit doesn't yet seem to be suffering inordinately, Tobias predicts that "the court will reach a tipping point and find that the quality of justice is declining."

This evidence serves as a sobering reminder that the processes of judicial nomination and confirmation should be expedited in order to ensure the delivery of justice.

CFJ New Press Releases Now on Home Page

Yesterday and today CFJ posted press releases on the fight for a fair vote for Judge Southwick on its homepage. You can find the press release from yesterday here and today's here.

The first press release concerns the fact that Left-wing groups have used the same baseless charges against almost every Southern white male Christian nominee they have opposed.

The second press release deals with a disturbing idea: It seems some Senate Democrats and the usual suspects on the far-Left seem to want a racial quota for the federal bench.

Rudy and the Commitments

On Townhall yesterday Rudy Giuliani posted his "12 Commitments" to the American People. Here's #9:

"I will reform the legal system and appoint strict constructionist judges.
America must reform its legal system. We need to eliminate nuisance lawsuits through “loser-pays” provisions. Tort reform can help us reduce costs passed on to the consumer, such as higher insurance premiums. Activist judges threaten to expand the power of the courts beyond the bounds established by the Constitution; we must reassert the proper balance."

Summer Reading List

I’m sure the whole country is engrossed in Al Gore’s new book, Assault on Reason, but for those of you who are more interested in constitutional law and the judicial nominations process than what is going on inside Al Gore’s head here are three books that come at least partially recommended by three different conservatives:

First, in City Journal Harry Stein reviews Charles Pickering’s new book A Price Too High, and recounts his contentious fight for a seat on the Fifth Circuit when, as Stein puts it, “Democrats and their press enablers trashed his record and reputation.”

Meanwhile, in The Weekly Standard (subscription needed), Ed Whelan has a review of Benjamin Wittes’s Confirmation Wars: Preserving Independent Courts in Angry Times. Though Whelan’s review is generally very favorable, he does have several problems with the book. “In the end,” Whelan writes, “the confirmation wars that Wittes decries are only a symptom of a deeper illness--not, as Wittes asserts, the mere growth of judicial power, but rather the judicial usurpation of American citizens' power of self-governance on a broad range of issues that the Constitution, fairly construed, leaves to the political processes.”

Finally, Powerline blogger John Hinderaker suggests we all take a look Say What?: The Manhandling of the Constitution by Jim Dueholm. The book “traces the history of constitutional interpretation in the Supreme Court, and explains how, over the decades, we have moved farther and farther away from the Constitution that the framers wrote.” Furthermore, the book “is intended for lay readers, not just legal specialists. If you're looking for a clear, accessible and entertaining account of how the Supreme Court went wrong, written by a very smart lawyer, this is it.”

Presidential Candidates on Judges

Each of the declared GOP presidential candidates has an issues page somewhere on their campaign web site. I went through each of them looking for any mention of judges or judicial nominations. I also took a look at all of the Democratic candidates’ web sites. Here’s what I found:

America’s mayor Rudy Giuliani has a section on judges in which he references his experience as the third highest ranking official in the Reagan Justice Department and promises that “the kind of judges he …would appoint are strict constructionists like Justices Scalia, Roberts and Alito – principled individuals who can be trusted to respect the Constitution as it is written, rather than attempting to legislate from the bench.”

Though there is nothing on his “Issues Watch” page that directly speaks to judicial nominations, Mitt Romney’s web site references his comments on the Massachusetts Supreme Judicial Court’s gay marriage decision: "Last year the Massachusetts Supreme Judicial Court struck a blow against the family …The court forgot that marriage is first and foremost about nurturing and developing children."

Senator John McCain’s web site contains a video of the candidate speaking on the subject of judges. On the video, McCain explains that he “will impose no litmus test on any judge, but it’s very important to appoint justices, such as Justice Roberts and Justice Alito, who strictly interpret the Constitution of the United States.”

Sam Brownback’s “On the Issues” page does not mention judicial nominations specifically. However, the “Religious Liberty” section describes how the ACLU profits financially from using the courts to fight the display of religious symbols.

California Congressman Duncan Hunter has an extensive issues page titled “Core Principles”. Included is a section on “Judicial Appointments” in which he says “it is important that those sitting on the bench understand that they have a responsibility to … not legislate from the bench with their own political or social agenda.”

Though former Arkansas Governor Mike Huckabee’s web site does not specifically address the type of judges he would appoint, it gives some indication. For example, Huckabee believes that Roe v. Wade should be overturned and applauds the Supreme Court’s recent partial-birth abortion decision.

Tommy Thompson’s site makes no mention of the kind of judges he would pick. But the former governor of Wisconsin does explain his stance on issues that have been at the core of recent controversial federal courts decisions – such as abortion and Second Amendment rights.

There’s no doubting where Tom Tancredo stands on judges. In his “Judicial Activism” section, Tancredo pulls no punches saying, “With decisions on abortion, gay rights, religion, sexual mores, and illegal immigration, activist judges have ripped democracy from the hands of the people on the issues they most want their voices heard. The intellectual dishonesty of activist judges has brought their profession into disrepute.”

While former Virginia governor Jim Gilmore’s “Issues” page does not describe the type of men and women he would appoint to the bench, it does explain how he has defended Second Amendment rights and fought “for the sanctity of life and the preservation of traditional family values.”

Though it doesn’t speak to judicial nominations, Ron Paul’s “Issues” page contains an entire section on “Property Rights and Eminent Domain” – just in case you didn’t know what this libertarian thinks of the Supreme Court’s Kelo decision.

I also took a look at all of the Democratic candidates’ web sites (even Mike Gravel’s), but couldn’t find anything about who they would appoint to the federal bench. There was plenty of discussion about issues impacted by the judiciary, such as abortion and the Patriot Act, but nothing about judicial nominations – not even bashing President Bush for nominating Justices Roberts and Alito. Given that the judges issue helped Republicans in the 2002 and 2004 elections, perhaps the Democrats are trying to stay away from it.

Note: While the Committee for Justice does not plan to endorse any of the candidates, we will be watching and reporting what they say about the judges issue.

Links:

Brownback: www.brownback.com/s/Issues/tabid/60/Default.aspx#Religious

Gilmore: www.gilmoreforpresident.com/issues.php

Giuliani: www.joinrudy2008.com/index.php?section=2

Huckabee: www.explorehuckabee.com/index.cfm?FuseAction=Issues.View&Issue_ID=11

Hunter: www.gohunter08.com/inner.asp?z=4

McCain: www.johnmccain.com/Informing/Multimedia/Player.aspx?guid=b4e7e5a4-f7f1-4daa-971d-f6f53a2b2b21

Paul: www.ronpaul2008.com/issues

Romney: www.mittromney.com/Issue-Watch/Values

Tancredo: www.teamtancredo.com/tancredo_issues_index.asp

Thompson: www.tommy2008.com/On_The_Issues.aspx

"Women, Minorities Top Bush's Supreme Court Short List"

Jan Crawford Greenburg has all the details in a very long article:

Owen, Rogers Brown Back on Short List

Leading Senate Democrats are already warning against solidly conservative nominees, and that could make confirmation difficult in the Democratic-controlled Senate.

Still, some of Bush's political advisers believe he would be better off tapping a strong conservative who would rally the base -- especially a nominee with a compelling life story who would be difficult for moderate Senate Democrats to oppose.

In that camp are federal appeals court Judges Priscilla Owen and Janice Rogers Brown. Both were filibustered by Senate Democrats after Bush nominated them as appellate judges and were eventually confirmed after Senate leaders struck a compromise on judicial nominations.

Either could have been a likely replacement for O'Connor in 2005, but leading Senate Republicans told the White House not to nominate them because they were seen as too controversial at the time. Now that both are on the federal bench, the White House has put them back on a working short list.

Of the two, Owen is the best known in the White House and is generally considered less controversial than the more outspoken Brown.

Owen, like Brown, also has gotten high marks from her colleagues on the federal appeals court. But Owen's friendship with Karl Rove could hurt her, especially in a White House vulnerable to charges of cronyism.

The White House also is looking at Chicago-based federal appeals court Judge Diane Sykes, who is considered conservative but less controversial, sources close to the process said. But Sykes is not as well known inside the administration, which is a strike against her, White House sources said.

Bush does not want to repeat the mistake of his father, who nominated the unknown David Souter, believing he was conservative only to see Souter quickly become one of the Court's most reliable liberal votes. . . . .

When Will They Learn?

Over at Bench Memos Ed Whelan asks, “Does AP stands for ‘Absolutely Pathetic’?” Once again, it seems the liberal MSM, either through genuine confusion or purposeful deception, misinforms the public as to how our democracy works. No, the Supreme Court did not ban a partial-birth abortion procedure, bi-partisan majorities (including current Senate Majority Leader Harry Reid) did.

Ed Whelan's post today reminds me of this earlier post of mine. When will the press learn?