Bench Memos

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Raspberry Vinaigrette


By now this is like shooting fish in a barrel, but some fish just ask for it. As I noted this morning, William Raspberry opines in his Washington Post column today that “to civil rights partisans” (that includes him, of course), Roberts has taken positions that “seem well out of the settled mainstream.”

Like a lot of liberal pundits, Raspberry has a lazy way of assuming that such fog-words as “mainstream” have an accepted meaning that is uncontested by people of good faith. But just what is the “mainstream” in constitutional interpretation is contested all the time, and has been since John Jay became the first chief justice.

Chin-pulling about hewing to the “mainstream” has preoccupied Raspberry’s columns about Robert Bork, on July 3, September 14, and September 21, 1987; about who would be next to be nominated after Bork’s defeat, on October 16, 1987; about the first President Bush’s future nominees to the Court, on November 11, 1988; about Clarence Thomas on July 10, August 7, and September 11, 1991; and about John Ashcroft’s nomination as attorney general, on January 19, 2001.

Raspberry’s record is completely devoid of any worries about whether Democratic presidents’ nominees are in or out of the “mainstream.” He simply assumes they are in it. The mainstream is, it appears, the possession of liberal Democrats, and Raspberry mans one of the picket boats defending its pristine waters from entry by “extremists” nominated by Republican presidents.

Once upon a time, the “mainstream” in constitutional jurisprudence was the principle of “separate but equal” under the Fourteenth Amendment. One of Raspberry’s heroes, Thurgood Marshall, thought that mainstream wasn’t good enough. But it hasn’t seemed to occur to William Raspberry that “out of the mainstream” is an epithet, not an argument.


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