Bench Memos

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Get to the merits!


Before the public-relations consultants to the Senate Democrats and the left-leaning interest groups came up with the (silly) claim that it is their devotion to separation-of-powers principles and their fidelity to the Constitution that requires them to continue preventing votes on the president’s judicial nominees, they had another, more candid, argument: These nominees are “extreme,” and should for that reason be kept off the federal courts.

The premise of this argument–namely, that “extremists” should not be federal judges–is easy to endorse. The problem, of course, is that the president’s nominees have been nowhere near “extreme,” but have instead been men and women of great intelligence and achievement, with views about the Constitution and the rule of law that are responsible and sensible. In my view, the public desperately needs to be educated about what, exactly, are the predicates for the claims by the New York Times, various senators, and left-leaning pressure groups that the president’s nominees are “extreme.” I am confident that a healthy majority of Americans would be surprised to learn what is in fact the case, namely, that “extreme” turns out to mean “thinks like most people about the role of courts, the rule of law, and the structure of the Constitution.” I once read a short piece by a well-respected (center-left) scholar who pointed out that only a tiny handful of Americans–fewer than 5%, if I remember–agree with the program of the New York Times editorial page. And yet, departure from that program, and nothing else, is what is resulting in the “extreme” defamation.

So, fight the labels, and get to the merits. The obstructionists should have to be more explicit about what they think it is “extremist” to believe, i.e., Congress’s power is bounded, the text of statutes and constitutional provisions should trump judicial policy judgments, abortion–even if legal–may be reasonably regulated, religious expression is protected in the public square, etc. I suspect, more specifically, that if more Americans actually read, or knew about, the stirring and inspiring work of Justice Janice Rogers Brown–”Theft is theft even when the government approves of the thievery. Turning a democracy into a kleptocracy does not enhance the stature of the thieves; it only diminishes the legitimacy of the government.”–they would stand up and cheer.


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