Bench Memos

NRO’s home for judicial news and analysis.

Matt on the Mark


About an hour ago I sat down with a cup of 100 proof coffee and turned to the latest NY Times “analysis” of the candidates on judges. Half-way through I put aside the caffeine and reached for Jack Daniels. But, then, I read Matt Franck’s vivisection of Neil Lewis’s Ode to Obama, and put away the Jack. Matt nails it. Nothing more of substance needs to be said.

There is a point of emphasis, however, which cannot be overemphasized. It is the central theme of Matt’s demolition job, because it is the central theme of Lewis’s apology for Obama. It is not, precisely, Lewis’s clumsy effort to protect Obama from guilt by association with the dread “L” word, studiously using the “progressive” label, and deftly quoting liberal law professors who say that Obama is just plain fine. Except that you have to know that Cass Sunstein is a liberal; Lewis does not tell you that, either. It is, more exactly, the utterly gratuitous and undeserved attachment of the adjective “conservative” to every thought and word and action of candidate McCain on the subject of judges. Matt says that McCain never used the word “conservative” in his Wake Forest speech. And my guess is that if you did a Lexis/Nexis search for utterances by — as opposed to about — John McCain for close proximity to the words “judges” and “conservative,” you would come up with a very short list. Heck, if you did such a search before, say, three months ago when he became the nominee apparent — and thus became a bulls-eye for liberal media — you’d probably get a short list too.

The gratuity is objectionable on many grounds, not least that it smacks of cowardice. Why can’t we just argue this judges’ thing out on the merits, in a fair fight about what what’s right and wrong in the very different approaches to judges’ craft on offer? Could we just discuss the matter of courts according to the ethical rules which govern discussion in courts: no knowing misrepresentations of either fact or law?

Apparently not. At least since the Bork confirmation hearing, “progressive” Senators, profs, and pundits have been cheating. They have consistently sidestepped open and honest debate about what judges ought to do. They have resorted instead to sleazy cheap shots. Bork was not “wrong”; he was “out of the mainstream” and could scarcely wait to sign a search warrant for your bedroom. Reagan, Bush and (now) McCain do not do what they say they do — which is to appoint judges who understand their job rightly, soundly, correctly. They instead appoint “conservatives” who will “roll back” rights and revolutionize our law. “Progressives” thus invite listeners to stop listening to McCain. After all, what’s the point of debating with someone who does not know his own mind, or who dissembles, or both? To the extent that Obama does not concede that cases can be and should be decided rightly (even, uneventfully) on the basis of mainstream legal analysis, he is a judicial populist. His difference maker (albeit in a small number of bellwether cases) is empathy for the underdog. For Obama, John Roberts is unqualified because Roberts does not feel the little guy’s pain. But how is this charge to be engaged, and rebutted? What if Roberts swears that he once used an outhouse? Does Obama’s infamous thirty-seven — 37!!! — bowling score prove that he is a populist imposter?

In the Brooklyn neighborhood where I grew up, it would.


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