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In the main

The New York Times editorializes on Bush's judicial nominations, arguing (once again) that Senate Democrats aren't behaving unfairly in filibustering Bush's nominees. First, they argue that the statistics show not many nominees are being blocked, but that isn't the main thrust of their argument:

What conservative interest groups are unhappy about is that Senate Democrats are balking at a small number of nominees who lie well outside the mainstream. How far outside? Janice Rogers Brown, a California Supreme Court justice nominated to the United States Court of Appeals for the District of Columbia Circuit, has publicly questioned incorporation, a well-settled legal doctrine holding that important parts of the Bill of Rights apply to the states. (At her confirmation hearing, she insisted that in fact she now accepts incorporation.) Alabama's attorney general, William Pryor, whose nomination to the United States Court of Appeals for the 11th Circuit has been kept unconfirmed through filibuster, called Roe v. Wade "the worst abomination" of constitutional law in our history.
I'm not sure quite where they get the idea that Brown has "questioned incorporation" -- other than from the People For the American Way hit piece on Brown, which seems to leave out an awful lot of context. (I suspect she's talking solely about the establishment clause, but there's no way to be sure, and I suspect even more strongly that the Times hasn't checked original sources on this point.) But in any case, are they implying her to be a liar when she "insisted" she "now accepts incorporation"? If not, what's their point here? She once was "outside the mainstream," but now she isn't? Or secretly inside her head she is?

As for Pryor, if the Times' editorial board thinks that opposition to Roe is "well outside the mainstream," the the Times' editorial board might want to venture outside the borough of Manhattan. Even among pro-choicers, there are many (such as yours truly) who agree that Roe was a poor ruling. And as for the substance of the ruling, there are an awful lot of pro-lifers in the country. Not a majority, but enough, surely, that being pro-life cannot be considered "outside the mainstream" any more than being pro-choice can. (Or, let's put it this way: there are more pro-lifers than there are who think that the partial birth abortion ban was a horrible law. The Times is in the latter category -- but I don't think the paper's editors consider themselves to be "outside the mainstream.")

If a majority of the Senate supports a particular nominee, where on earth do the editors get the gall to claim that the nominee is "outside the mainstream"? Who elected the Times to speak for anybody?

Most fundamentally, what kind of argument against a judge is it that the judge is "out of the mainstream"? Are judges supposed to be politicians, or are they supposed to be independent, judging cases on their own merits regardless of where the mainstream is? Wasn't the Supreme Court pretty "out of the mainstream" when it ruled that the death penalty was unconstitutional? Or school prayer? Or that Miranda warnings needed to be given? Or that schools should be desegregated, or abortion legal, or flag burning, or... well, you get the idea. Aren't these all decisions that the New York Times celebrates? (It's rhetorical: the answer is "Yes.")

One might suggest that editorial's writers mean -- though they don't say so -- that regardless of what the public's views are, the nominees are outside the mainstream of current jurisprudence. But that's an even stranger complaint, and one the Times can't effectively make. Why? Because, like all doctrinaire liberals, the Times believes in a "living" Constitution which "evolves" to meet societal standards. The only way they can justify their support for rulings such as a ban on the execution of the retarded or the unconstitutionality of sodomy laws is to suggest that these rulings reflect the current mainstream. So they can't now suggest that the judicial mainstream is far from the public mainstream.

The only way to reconcile these points is to realize that the editorial writers simply define their own views as "the mainstream," and then demand that judges rule that way because it fits their preferences. Which is hardly a useful principle for running the judicial branch.


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