Bench Memos

NRO’s home for judicial news and analysis.

“Balance” on the Court--and in the Times


Today in the New York Times, reporter Neil A. Lewis reviews the action so far on the judicial front in the presidential campaign.  There are wonders aplenty in this article–that is, you’ll wonder how anyone could pack so many distortions into one news article.  Here goes:

1.  John McCain is repeatedly described as dedicated to putting “conservative” judges on the courts.  I haven’t seen any speech in which McCain is on record as saying any such thing; perhaps he has spoken this way off the cuff once or twice.  But in his only major address devoted exclusively to this subject–at Wake Forest on May 6–McCain never uttered the word “conservative” at all.  In that speech he makes it pretty clear that he wants non-ideological judges, neither liberal nor conservative, who bring no political considerations to their judging, leaving that to the people and their elected representatives.  In his best line in that speech, McCain said he will appoint “jurists of the highest caliber who know their own minds, and know the law, and know the difference.”

2.  By contrast, Barack Obama is never once described by Lewis as desiring to put “liberals” on the bench.  But he would, says Lewis, “look to name judges with an expansive, progressive view of the Constitution.”  That’s reporter Lewis talking, not quoting someone.  For these adjectives we may fairly read “liberal,” the ideology that dare not speak its name.  But does anyone doubt that “expansive” and “progressive” are terms of approbation?  By contrast, Lewis puts “activist judges” in scare quotes when discussing McCain’s views.  It really is a quotation from McCain’s May 6 speech, but the phrase is so ordinary the punctuation could have been omitted.  The message from Lewis seems to be: Really there’s no such thing, don’t you know?

3.  Obama is said, early in the article, to have been so far “less explicit” about his views on judicial appointments than McCain has been.  By the time Lewis gets around to Obama’s desire for judges with that “expansive, progressive view,” however, this becomes something the Illinois Wunderkind has “made clear.”  So Obama has been clear without being explicit.  Yes, this we’re getting used to, aren’t we?

4.  Lewis likens McCain to Ronald Reagan and the current President Bush, but in an audacious rewriting of history, describes Reagan and Bush, both non-lawyers like McCain, as “enthusiastic instruments of those conservative lawyers who were diligent in choosing conservative judicial nominees.”  I don’t think any of the lawyers involved in Republican administrations’ judicial nomination efforts over the last three decades would for a moment consider describing these presidents as “instruments” and themselves as the Svengalis.  The relation of user to used would rather be the other way around–as it should be.

5.  But that cheap shot is just the set-up for the biggest howler in this article.  This time Lewis defers to a source, Chicago law prof and Obamaniac Cass Sunstein, probably because of a failure of nerve on Lewis’s own part to tell this whopper himself.  Sunstein tells Lewis, “[t]he first thing to know” about Obama “is that he knows this stuff inside and out, and he has the credentials to be easily appointed to the court himself.”  Perhaps Sunstein wants to change the subject from the ongoing discussion whether Obama has the credentials to be president.  But this is ridiculous.  For about a decade Obama taught part-time at the U. of Chicago law school, a class or two each year in constitutional law subjects, winding up with the wildly misleading title “senior lecturer,” one shared by really accomplished faculty such as Judge Richard Posner.  Obama has published exactly nothing on the subject.  Even when he was elected editor of the Harvard Law Review he published nothing at all, perhaps the first of the modern student editors to remain silent in print throughout his tenure.  When he does speak on the subject he betrays no hidden depths of knowledge about the law.  (To Planned Parenthood last summer he opined, predictably, that “a woman’s right to make a decision about how many children she wants to have and when–without government interference–is one of the most fundamental freedoms we have in this country”–this in criticism of the Supreme Court’s deference to Congress in Gonzales v. Carhart earlier last year.)  I can confidently say that no recent Democratic president, nor any of the rivals Obama has vanquished in this year’s race for the party’s nomination, would ever have thought for one minute of appointing Barack Obama to the Supreme Court.  The suspicion strongly arises that Cass Sunstein would dearly love such an appointment himself, else why butter up the candidate so unctuously?

6.  Throughout the article Lewis keeps repeating that there is some “current conservative dominance of the courts.”  Yeah, sure.  There are a lot of Republican appointees, but that ain’t the same thing.  Ever heard of Warren, Brennan, Blackmun, Powell, Stevens, O’Connor, Kennedy, Souter?  Republican appointees all, and not a reliable “conservative” in the bunch, and worse yet, not a reliable non-ideologue among them either.  Lewis quotes another “expert” here, David Yalof of the U. of Connecticut, who utters this non sequitur: “There’s been an ideological imbalance on the courts, given that Republicans have controlled the White House for 20 of the last 28 years.”  Yalof “has written extensively about the judicial-appointment process,” Lewis reports.  True, and his work’s not half bad on that subject, if somewhat politically slanted.  But Yalof cannot be paying attention to what the Supreme Court actually does and continue to push the thesis that there’s some “ideological imbalance” in favor of conservatism.

Here’s a simple test that even the New York Times ought to understand.  Whether you inaccurately call the struggle against it “conservative” or not, as long as Roe v. Wade remains the law of the land, there has been no decisive victory over the hegemony of liberal judicial activism.


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