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Perhaps the most charitable view of Joan Biskupic’s “news analysis”—“Bush appointees signal court’s new direction”—in today’s USA Today is that Biskupic believes her readers to be idiots and is eager to keep them that way.  Consider:

1.  Biskupic relies entirely on political labels for justices (“conservative,” “moderate,” “liberal”).  She never betrays any hint of understanding the massive difference between a justice’s deferring to legislative enactments and a justice’s overriding those enactments.  Thus, for example, she describes “liberal” justices merely as “backing abortion rights” when they in fact have usurped the power of the American people to determine abortion policy.  Why is it “liberal” to have a judicially imposed nationwide regime of abortion on demand and “conservative” to recognize that the Constitution leaves the matter of abortion to the democratic processes for regulation?  (Here’s my NRO essay explaining more fully that the supposedly “conservative” position is in fact substantively neutral.) 

2.  Biskupic states that retired Justice O’Connor was a “moderate” who “generally was conservative” and who took a “tentative approach” on key issues.  These terms are gobbledygook.  As Justice Scalia often asks, what does it mean for a justice to be a “moderate”?  Moderately faithful to the Constitution?  And although O’Connor’s reasoning and line-drawing were often opaque, there was nothing “tentative” about the many radical judicial power grabs that she supported.

3.  Biskupic can’t play the issues straight.  She maintains, for example, that the racial-preferences cases before the Court threaten “government programs that have been created as remedies to past discrimination.”  But the actual question in those cases is whether the government’s use of race is permissible where it is not in fact crafted as a remedy for past discrimination.  And she says that the abortion cases before the Court involve an abortion procedure that “critics call ‘partial birth’”.  But the term that is used is “partial-birth abortion,” not “partial birth,” and that term, far from being the peculiar usage of “critics,” has been adopted into the very federal law at issue.

4.  Biskupic wields her thesaurus of mean-conservative words:  Roberts and Alito have been “aggressive and sometimes feisty”; Alito “bristled”;  and Roberts and Alito may “take a harsher view of abortion rights, affirmative action, and other Democratic priorities”.  Biskupic even suggests that Roberts’s questioning at oral argument was merely “echoing” and “reflecting” the position of the Bush administration.


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