I’m more of a moderate than Justice Kennedy

As much of the media focused on the political farce that is Elena Kagan’s confirmation hearings (Republican senators took it as an opportunity to slam Justice Thurgood Marshall? Really?), I learned everything I need to know about Supreme Court politics from an Associated Press report on a recent court decision:

“In requiring CLS – in common with all other student organizations – to choose between welcoming all students and forgoing the benefits of official recognition, we hold, Hastings did not transgress constitutional limitations,” said Justice Ruth Bader Ginsburg, who wrote the 5-4 majority opinion for the court’s liberals and moderate Anthony Kennedy.

Let’s be clear: Justice Kennedy is not a “moderate.” He is in many ways a classic conservative. It’s just that he sometimes appears moderate compared to the activist, right-wing, wacko judicial philosophy espoused by his fellow Republican appointees.

And honestly, by historical standards, “the court’s liberals” really aren’t all that liberal either. Justice Breyer, now he’s a classic pro-business/civil-libertarian  moderate, and even Justice Ginsburg, who is now the court’s liberal leader on social issues, is hardly such when it comes to issues of commerce.

Republican presidents succeeded in appointing perhaps the most conservative court since the Dred Scott decision. So please, let’s not water down the political significance of their accomplishment by attempting to define the justices’ true ideological leanings by comparing them to each other, rather than their predecessors.

Comments

  1. 1

    rhp6033 spews:

    The media loves to paint Supreme Court justices in terms of a left/right dichotamy. But it’s rarely that simple.

    The court hears a wide range of legal issues, from rather boring cases involving bankruptcy, securities, and corporate laws; civil or criminal proceedure; military law; etc. The handful of cases which make the news are but a fraction of the total handled by the court. You can add to the mix differences in judicial philosophy over such abscure legal concepts such as standing, exhaustion of remedies, etc.

    So trying to lump them all into two or three categories (i.e., liberal, moderate, conservative) might apply only to one issue, rather than to the entirity of their views.

    Unless we are talking about Clarence Thomas, of course.

  2. 2

    Michael spews:

    They’re bashing Thurgood Marshall? It’s probably a good thing I’m not paying attention. The nomination is going to go through, so why hold things up? Put her on the bench and get on with life.

  3. 3

    tpn spews:

    Patty Murray is also not a liberal, by the historical standards litmus test cited above. But I guess that falls under the “that’s different rule”, where the critique of spelling typos are a suitable substitute for substantive debate.

  4. 4

    headless lucy spews:

    In a discussion of the recent court decision according corporate entities political speech via money, BP was heard to say: “$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$.”

  5. 6

    Daddy Love spews:

    3 tpn

    Patty Murray is also not a liberal, by the historical standards litmus test cited above.

    Really? Do expound on your assertion.

  6. 7

    SJ spews:

    @1 rhp

    I WISH I agrred with you.

    Unfortunately the court like the country seems to have become a dichotomy .. on the one side is the Credo of the “conservatives.”

    The conservative credo lumps things that have no consistent philosophy … ranging from doctrinaire Roman Catholic Chrisitianity to economics as revealed on a mountain by Ayn Rand.

    The “other side” has no real Credo, or if it does it is pretty much defined by not accepting the Credo of the right. For the most part, the “liberals” or “left” is now defined by its opposition to the radical credo of the right.

    Lost in this are three things we badly need:

    1. rationalism … One side denies reality, the other does not stand up for reality as much as it opposes the denialists.

    As one for out example, a committed rationalist might SUPPORT a law that declares creationism as a form of blasphemy.

    2.strict constructionism … despite a LOT of blather, it is clear that the radical credo comes BEFORE constitutional constructivism. The idea of the corporate personality would disgust Madison, Jefferson, Franklin, Adams, and Hamilton. Yet activist conservative judges have now ruled that BP has the same freedom of speech that I do, without ..however, BP employees being regulated by the same laws of slander that affect non-corporate individuals.

    3. true liberalism .. if we must have 1/2 of the court that insists that Jesus stopped the rotation of the Earth at the behest of Joshua and therefore that the wealthy are entitles to be wealthy, then we need an opposition that is equally fervent over the enlightenment ideas of tyhe rights o all of us.

  7. 8

    Richard Pope spews:

    Gee Goldy — maybe you are more of a moderate than Elena Kagan as well. Whatever a “moderate” is supposed to be …

    Looks like the U.S. Supreme Court granted the appeal of former Alabama governor Don Siegelman today. Siegelman was the last Democratic governor down there, and was persecuted on highly questionable (okay not questionable at all, but totally bullshit) corruption charge by Karl Rove and some very political U.S. attorneys and Department of “Justice” people. Technically, Siegelman was granted a writ of certiorari, commanding the 11th Circuit to once again review his conviction, in consideration of the Skilling decision last week throwing out an overbroad interpretation of the “honest services” law.

    Anyway, it only takes four justice to grant cert, so we don’t know how Kennedy weighed in on this. But the unanimous Supreme Court overturned Skilling’s conviction, so there is a pretty good chance that Kennedy also felt that Siegelman deserved further review of his unjust conviction.

    However, we do know how Elena Kagan has already weighed in on Siegelman’s conviction. Kagan filed a brief opposing the cert petition, saying that Siegelman was justly convicted and did not merit further review of his conviction by the U.S. Supreme Court.

  8. 9

    BPee spews:

    re 8: Good point, and in addition: $$$$$$$$$
    $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
    $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
    $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
    $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
    $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
    $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$
    $$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$$

    And I really meant every word.

  9. 10

    ld spews:

    So how’s Obama’s Stock market doing today, only down another 300. Great job on the recovery, try adding about 18 million jobs Bucco

  10. 11

    Michael spews:

    @10
    Of course the stockmarket is down the world is a very F’d up place. Obama didn’t create this F’d upness. He is trying to fix it and looks to be doing a better job of it than McCain would have.

  11. 12

    Michael spews:

    It’s been lost in the fray, but Obama’s Justice Department folks have been doing some trust-busting work, which should help to get thing rolling again.

  12. 13

    Mr. Sinical (...proud 'neath heated brow.) spews:

    re 7: Credo – a system of principles or beliefs.

    The right wing credo is to prevent the common man from organizing to promote his own self interest. Their overarching concept is to suppoort entrenched wealth at whatever cost to the rest of us.

    Example: The slamming of Thurgood Marshall for the past several days encourages racists and promotes the division of the common man — which works to the advantage entrenched wealth.

    The Liberal credo is based on Enlightenment principles that extol science and reason as the guides for humankind. Secular humanism, if you will.

    Also, a close reading of the works of John Locke (the philosopher, not the guy on Lost)best states the Liberal principle that the policies of government should attempt to address the needs of majority of the population and not just the oligarchy.

  13. 14

    proud leftist spews:

    Our current Supreme Court is far to the right of the majority of Americans. We have not had a true liberal on the Court since the Brennan/Marshall days. Hopefully, with his next pick, Obama will grow some balls and nominate a true liberal so that we might work our way back to having a rational Supreme Court that interprets, rather than makes, the law.

  14. 15

    Mike Jones spews:

    Obama is soing just fine and I like that he is nominating moderate center-left justices to the court. Just because the GOP likes to appoint right wingers doesnt mean we should appoint left wingers. We are a country of moderates and hence should have an SC that is the same way, right now therea slight tilt to the right but not a huge one.

  15. 16

    rhp6033 spews:

    Pope @ 8: “However, we do know how Elena Kagan has already weighed in on Siegelman’s conviction. Kagan filed a brief opposing the cert petition, saying that Siegelman was justly convicted and did not merit further review of his conviction by the U.S. Supreme Court.”

    Kagan was just acting on behalf of her client, the Justice Department. She was defending the conviction because that was her job. That’s what lawyers are supposed to do, as you certainly know. But the problem now is that Kagen will have to recuse herself from any future decision on that case.

    In contrast, note that McKenna is STILL refusing to do his job in representing the appeal of the DNR.

  16. 17

    Michael spews:

    @16

    Kagan was just acting on behalf of her client, the Justice Department. She was defending the conviction because that was her job. That’s what lawyers are supposed to do, as you certainly know.

    We should share this tidbit with Rob McKenna!

  17. 18

    rhp6033 spews:

    “10. ld spews:

    So how’s Obama’s Stock market doing today, only down another 300. Great job on the recovery, try adding about 18 million jobs Bucco”

    The DJIA on 1/20/2010, when George W. Bush turned over the Presidency to Barak Obama: 8,281,22.

    DJIA at close of trading today: 9,870.30.

    Feel free to get back to us when the DJIA loses 21.78% of it’s value during the course of the Obama administration, as it did during the eight years of the Bush administration. That would be a closing price of 6,528.09. Otherwise, shut up.

    Oh, and the loss today was 266.22, not 300.00. As of today’s date, the DJIA has increased 19.19% in the first year and a half of the Obama administration.

  18. 19

    Mr. Sinical (...proud 'neath heated brow.) spews:

    re 8: If what #16 says is true, you were being deliberately deceptive in attempting to paint Kagan as someone who thought the former governor was fairly treated.

    Are you backsliding into wingnuttia?

  19. 20

    Brenda Helverson spews:

    We should always remember and never forget that Justice Anthony Kennedy, Republican of California, stopped the Florida recount and effectively handed the 2000 Election to President Cheney and Little bush. Anthony Kennedy is a jackass.

  20. 21

    Richard Pope spews:

    rhp @ 16

    Elena Kagan’s client as Solicitor General is the U.S. government, and the U.S. Department of Justice in the case of federal criminal prosecutions. DOJ is headed by the U.S. Attorney General, who is Eric Holder. Holder was appointed by President Barack Obama, and serves at the pleasure of the president (as has been the case for all cabinet officers).

    The analogy with Rob McKenna and Peter Goldmark is entirely different. McKenna and Goldmark are independently elected officials. McKenna is required by law to provide legal services to Goldmark, including the appeal. So the legal positions argued by McKenna’s staff can be entirely different than the policies and philosophies that McKenna prefers — and indeed they should be in the present DNR appeal controversy.

    So if McKenna ends up performing his duty, I would not take it as McKenna personally believing the PUD’s can never condemn state lands (or school trust lands). By contrast, it is much more appropriate to hold Kagan responsible for the positions that she advocates as Solicitor General.

    By the way — Holder was personally responsible for doing justice to former Senator Ted Stevens (who was likely guilty in any event) when that prosecution was marred by misconduct by the DOJ prosecutors. Holder caused the conviction to be overturned and the charges dismissed, simply by directing his staff to file the appropriate motions.

    Why can’t Holder do the same thing for former Governor Don Siegelman?

  21. 22

    MikeBoyScout spews:

    Ah, suck it up Goldy.
    Justice Marshall was obviously an activist judge. Heck, he had the audacity to be black! The right honorable Senator Sessions won’t say as much, but heck, can you really deny that if it weren’t for Marshall and the activist NAACP we would not have that Kenyan born Muslim president?

    Justice Kennedy is certainly a moderate.
    Kennedy has never called racism practiced by private businesses a constitutional right. Heck, Kennedy may even be against the re imposition of slavery.

    Suck it up Goldy, or they may soon turn you off with that new internet shut-off switch.

  22. 23

    ConservativeFirst spews:

    I think this shows how far left Goldy is from the mainstream, not how moderate or conservative the court is.

  23. 25

    Proud To Be An Ass spews:

    I happen to like MY activist judges, wingnuts like Scalia? Not so much.

    But the guy who really started all this activism thing was John Marshall.