May 8, 2009


May 8, 2009 09:19

Adam Liptak writes a largely contentless piece about Souter and his possble replacements.

But I noticed two utterly conventional and very irksome elements. The first is that he off-handedly describes Souter as "liberal."  This is simply not an accurate characterization.  It's true that Souter respects precedent and is not particularly activist  in his rulings. It is simply bizarre  that a justice who treats stare decisis as an important principle be labeled "liberal," especially in such an off-hand fashion. 

This isn't a bad thing for progressives looking for a real liberal to be appointed to the court. But it is an illustration of just how far to the right the Overton Window has shifted.   That upholding a 1973 ruling that has been the law of the land for more than a generation, and is widely accepted by rank and file Americans makes a Justice into a "liberal" flies in the face of the dictionary definitions of liberal and conservative.

The second irksome element is this:

Justice Antonin Scalia’s views about the importance of adhering to the text and original meaning of the Constitution and statutes, for instance, has come to dominate conservative judicial thinking.

While it's true that Republicans constantly repeat this claim,  it is a canard, just as is their deriding "activist judges."  It is hard to find an example of flouting the Founders intent more striking than Bush v Gore, nor an example of more aggressive activism.  Another example of Scalia's wing's activist disrespect for the constitution and the legislature was the Lilly Ledbetter opinion.

This article is an excellent illustration of Walter Pincus' analysis of the decline of journalism, posted yesterday in the Columbia Journalism Review:

Today, mainstream print and electronic media want to be neutral, presenting both or all sides as if they were refereeing a game in which only the players—the government and its opponents—can participate. They have increasingly become common carriers, transmitters of other people’s ideas and thoughts, irrespective of import, relevance, and at times even accuracy.

Conservatives have excellled at their PR approach, of falsely characterizing themselves and the opposition, setting the conventional frames for the lazy media to follow. 

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