“The Supreme Court Fight Is About Democracy”: Conservatives Want To Bring Back Pre-New Deal Jurisprudence
There’s a reason beyond garden-variety partisanship that Senate Republicans resist even holding hearings on President Obama’s nomination of Merrick Garland to the Supreme Court. Their gambit evades a full and open debate over the conservative judicial agenda, which is to use the high court in an aggressive and political way to reverse decades of progressive legislation.
The central irony here: The very conservatives who use “judicial activism” as a battering ram against liberals are now the aggressive judicial activists. It’s precisely because Garland’s record reveals him to be a devout practitioner of judicial restraint that an intellectually frank dialogue over his nomination would be so dangerous to the right. It would expose the radicalism of their jurisprudence.
Some conservatives are quite open about this, and few have been more candid than George F. Will, my Post colleague. To begin with, he deserves credit for making clear in his most recent column that Garland really is a stout advocate of judicial “deference” and for pointing out the absurdity of the Republicans’ refusal to take up his nomination. And in the past, Will has been unusually direct in defining the stakes in our battles over the role of the courts.
In a 2014 column aptly headlined “Judicial activism isn’t a bad thing,” he wrote: “Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.”
Will’s attack on “a spurious majoritarian ethic,” of course, is another way of criticizing the workings of democracy. Where does this lead?
It leads to the Citizens United decision (which Will supports as emphatically as I oppose it) that overthrew decades of precedent and a century of practice involving limits on the power of big money in politics; to the Supreme Court’s evisceration of the Voting Rights Act; and to the scrapping of all manner of legislation aimed at protecting workers’ rights, the environment and consumers. Historically, it’s an approach that, more often than not, leans toward employers over employees, creditors over debtors, property owners over less affluent citizens, and corporations over individuals.
We know what this approach looks like because it’s the one the court pursued for decades before the New Deal. It is this pre-New Deal jurisprudence that conservatives want to bring back. Some conservatives have talked openly about the “Constitution in Exile,” referring to the way our founding document was once read to overturn many New Deal and Progressive Era laws. Starting in the late 1930s, the court moved to a different approach that gave Congress broad latitude to legislate on matters related to social justice and economics and saw its task as intervening primarily on behalf of individual rights.
Will’s outright embrace of “judicial activism” has brought him some critics on the right. One of them is Ed Whelan, president of the Ethics and Public Policy Center and a leading defender of the Senate Republicans’ current strategy. “Most contemporary conservative proponents of judicial restraint,” Whelan has written, “are also proponents of originalism and see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question.”
Whelan added that his approach would, like Will’s, allow judges to “enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth.” But it would also “prevent judges from inventing rights and powers that are not in the Constitution.”
Here’s my translation of Whelan: He’s instructing Will to notice how originalism — the conservative theory that insists we can apply the original meaning of the Constitution’s words and the Founders’ intentions with some ease — leaves judges with plenty of power to toss out progressive laws. At the same time, it gives conservatives grounds to oppose liberals on such issues as abortion and gay marriage.
I’ll stipulate that there are some legitimate conservative arguments against liberals on their own forms of social-issue activism. But I’d insist that we will understand this court battle better if we pay attention to Will’s straightforward language: Through originalism and other doctrines, conservatives have embraced an astonishingly aggressive approach to judging. It allows them to reach outcomes through the courts that they cannot achieve through the democratic process.
At heart, this is a debate over how we define democracy. It’s also a struggle over whether government will be able to serve as a countervailing force to concentrated economic power.
By: E. J. Dionne, Jr., Opinion Writer, The Washington Post, March 20, 2016
“Jim DeMint Looking Over His Shoulder”: Trump Made A Big Promise Aimed At Winning Over Nervous Conservatives
It sort of got lost in competing news about his efforts to seem a mite more normal now that he’s almost certain to head to Cleveland in July as the leader in delegates, if not the putative nominee, but Donald Trump made a very unusual and highly significant promise aimed right at the beating heart of movement conservatism:
Speaking at the construction site for his new hotel in Washington, D.C., Monday, Trump said he will make a list public in the next week of 10 conservative judges that he would consider nominating to the Supreme Court. If elected, Trump said, he would only pick from that list, which is being made in consultation with the conservative Heritage Foundation.
He first made that promise over the weekend in Florida, and he seems to want to make sure it’s widely heard. This means somebody is giving him good advice about how to address the concerns of conservatives about his ideological reliability.
Of all the things they fear about a President Trump, the most urgent is that he will throw away a once-in-a-generation opportunity to reshape SCOTUS and constitutional law. And of all the temptations they have to hold their noses and support the man despite all of his heresies and erratic behavior, the most powerful would be the confident belief that at least he would position the Court to overrule Roe v. Wade, protect Citizens United, overturn Obama’s executive orders, eviscerate regulation of businesses, inoculate religion-based discrimination, and maybe even introduce a new Lochner era of constitutionally enshrined property rights. This would be a legacy that might well outweigh the risks associated with a Trump presidency.
Promising to make his SCOTUS list public right now is smart, because otherwise it’s an empty promise, and involving the Heritage Foundation in developing it is key to its credibility. Not only has Heritage had a long history of vetting Republican appointees; its current president, Jim DeMint, is arguably the most reliable of “constitutional conservatives,” a man who believes conservative policy prescriptions ought to be permanently protected from the occasional liberal majority via a divinely inspired and unchanging Supreme Law.
Bonding with conservatives over SCOTUS makes some psychological sense for Trump as well. Nothing symbolizes the betrayal of the conservative rank and file — whose abiding exemplar is arguably the humble anti-choice activist staffing phone banks and licking envelopes to protect the unborn from “baby-killers” — by those GOP elites in Washington better than the long string of Republican SCOTUS appointees who have turned out to be traitors to the Cause, from Roe v. Wade author Harry Blackmun to the generally liberal John Paul Stevens and David Souter to the current Obamacare-protecting chief justice. If Trump can break that pattern with Jim DeMint looking over his shoulder, maybe he won’t be that bad for conservatism after all.
By: Ed Kilgore, Daily Intelligencer, New York Magazine, March 22, 2016
“Changing The Electoral Dynamic”: The Unexpected Political Impact Of Terrorist Violence
Early this morning, as many Americans were just learning about this morning’s deadly terrorist violence in Brussels, Politico’s Blake Hounshell noted on Twitter, “America may be one major terrorist attack away from Donald Trump as president.” MSNBC’s Chris Hayes responded soon after that it’s a scenario that keeps him up at night.
This line of thought is not at all uncommon: in a general election, Trump, burdened by broad unpopularity, would start the race as an underdog, but many analyses have concluded that he could win the presidency anyway if voters are sufficiently terrified. It feeds into a conventional wisdom that suggest Republicans benefit politically in the wake of terrorism, and Trump specifically benefits even more.
But the conventional wisdom may not be entirely correct. Yes, Trump has seen a boost in GOP support after attacks in Paris and San Bernardino, but extrapolating to a national audience is a different story. I’m reminded of this Washington Post/ABC News poll we discussed around Thanksgiving – after the Paris attacks and when Americans were increasingly panicked about refugees.
A crescendo of tough talk on Syrian refugees and terrorism seems to be elevating the toughest talkers in the GOP primary – most notably Donald Trump. But among the broader American public, the most trusted person to handle the issue is Hillary Clinton. […]
By 50 percent to 42 percent, more Americans say they trust Clinton to handle the threat of terrorism than Trump, who leads the Republican field and responded to the Paris terrorist attacks by calling for heightened surveillance of mosques and redoubling his opposition to allowing Syrian refugees to settle in the U.S.
Clinton’s eight-point advantage over Trump wasn’t unique: the same poll showed the Democratic frontrunner also leading the other GOP contenders when respondents were asked, “Who would you trust more to handle the threat of terrorism?”
It’s not the only data available on this. The Washington Post’s Greg Sargent noted this morning, “A recent Economist/YouGov poll found that only 30 percent of Americans think Trump is ‘ready to be Commander in Chief,’ while 60 percent say he isn’t. For Hillary Clinton, those numbers are 46-45.”
As we discussed several months ago, Democrats may be at a perceived disadvantage on matters related to national security generally, but Clinton, if she’s the Democratic nominee, will have more foreign-policy experience than any other presidential candidate in a generation. All of the remaining Republican candidates are either literal or practical amateurs on international affairs.
If the question is one of preparedness, it’s a test the former Secretary of State passes easily.
All of this matters, of course, because of the degree to which it challenges preconceived ideas about which issues benefit which parties. Republicans widely believe they benefit most when elections focus on the issues where they’re strongest: national security, foreign policy, counter-terrorism, etc. Just so long as voters overlook their discredited ideas and track record of foreign-policy failure – and in Trump’s case, the fact that he’s painfully clueless – GOP officials are certain they’re on firmer ground when voters’ attention moves away from the economy, health care, education, and the environment.
But there’s some evidence that suggests Clinton’s resume is unique, and with her background comes an ability to speak with authority on an issue Republicans claim as their own. It changes the electoral dynamic in ways the political world may not have fully digested yet.
By: Steve Benen, The Maddow Blog, March 22, 2016