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Bench Memos

NRO’s home for judicial news and analysis.

Extreme, Extreme, Extreme



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 The other day, Matthew Franck helpfully critiqued Prof. Cass Sunstein’s Boston Globe op-ed on Roe v. Wade. Now, Sunstein has reworked that piece for the crowd at Huffington Post, whom he warns of the dangers that the election of John McCain poses to the enterprise of securing one’s preferred policies through courts rather than through legislatures.

Cass Sunstein is, of course, among the country’s most prolific and accomplished legal scholars. But, even Homer nodded, and these pieces are misguided.

According to Sunstein, McCain “invokes the clichés and code words of the extreme right”; he “has been a proud and enthusiastic supporter of President George W. Bush’s most extreme appointees to the courts of appeals”; he “may well follow the extreme right-wing of his party” with respect to judicial nominations, etc., etc. Now, if words have meaning, these charges are badly misplaced. That some recent Court decisions fail to align with the preferences of, say, the editorial writers at the New York Times (or of eminent legal scholars) does not make them “extreme.” I can say with some confidence that, if “extreme” is defined in terms of “closeness to public opinion”, then the outcomes reached and the approach to judging employed by President Bush’s judicial nominees are less “extreme” than, say, those editorial writers’ views. 

Sunstein alleges that McCain is employing “code” when he talks about judges and courts, but the charge sticks just as well to critiques like those in his piece: When Prof. Sunstein warns of “activism” and a “shift to the right,” one suspects that what he is really saying is that he wants a Court that will invalidate measures he dislikes and approves ones he likes, and he worries that judges and justices nominated by McCain will not satisfy this want.

Sunstein notes, among other things, that “it would be a startling coincidence if the best interpretation of the Constitution turned out, fairly consistently, to entrench the political views of one or another side.” Absolutely. But, in both the Boston Globe and Huffington Post pieces, the “entrench[ment]” of one side’s political views is precisely what he seeks to protect. Roe v. Wade and similar decisions “entrenched” one side’s political views, and insulated them from testing and competition in the political marketplace.  To reverse Roe would “entrench” nothing, it would merely permit the conversation to begin.



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