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Bench Memos

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The Nominee Game



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If there is a vacancy announcement this week (and it is about even money on no vacancies versus one vacancy, and even then it’s hard to guess whether Rehnquist or O’Connor step down), be ready for the flood of handicapping on the nominees. Liberal activist groups, like NARAL, People for the American Way (or if John Edwards were involved, People for the Two American Ways) are going to be ready whoever the nominee is with “Judge X is anti-environment or Judge Y is against women’s rights or Judge Z is a wife beating dog hater). This is precisely how they hope to deceive the public, by characterizing a nominee’s judicial (or lawyering) record as a political matter. But keep in mind that, more often than not, the decisions that are being characterized have little, if anything, to do with politics, and are a matter of construction of an act of Congress or a constitutional provision. So when NARAL attacks Judge Mike Luttig as anti-women’s rights as a result of his opinion in Brzonkala, which struck down the violence against women act (and was eventually upheld by the Supreme Court), the truth of the matter is that Judge Luttig said little to nothing in his opinion about the problem of violence against women in our society, but instead ruled that Congress lacks the authority to legislate in what is essentially a purely local, non-commmercial matter. Judge Bill Pryor was attacked for filing a Supreme Court brief in the same case; interest groups called him hostile to women’s rights. But then Alabama AG Bill Pryor made very clear in filing his brief that the issue was one for his state to address and that Congress really had no business legislating under the Commerce Clause. More often than not, the real explanation of a decision lies in the details. But the liberal interest groups hell bent on destroying whatever nominee comes down the pike will seek to distort the opinion by playing on the politics of the decision. And that’s just the point–they want judges who will play to their politics interests, rather than interpret the law. So politicizing individual decisions is one part of that arsenal.



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