January 14, 2006

Lithwick on Alito

My friend, Brad, points me to the latest from Dahlia Lithwick about the Alito hearings, with the following admoniton:
I know you described this writer as a "screecher" last time around, but I think she's pretty on point here.
While this latest certainly qualifies as a more clever exposition than the previous column he pointed me to (which, for the record, I believe I labelled "hysterical" rather than characterizing the author, herself, as a "screecher"), I think her entire mildly sarcastic argument stumbles on this point:
Federalists espouse a view of the Constitution and the allocation of government powers that largely differs from yours; it may indeed differ from that of most Americans.
That, I believe, is the root of the problem. Liberals don't want to believe that these Federalist creatures have views that are actually in the mainstream. They try to pretend that spousal notification of abortion (with significant outs for risk of abuse, etc.) are beyond the pale because they threaten the gospel of Roe v. Wade — while 70% of the American populace supports them. Many of the positions that they try to portray as "out of the mainstream" are, for better or for worse, very much in the mainstream right now.

If Dahlia Lithwick got out of the back offices of Slate (and perhaps Washington, DC as well) she'd realize that the Federalist, domesticated or wild, is not such an unusual creature.

Finally, her return to the tired (and bogus) talking point about the strip search of a 10-year old proves where she's coming from (the left) and what she's interested in (the polemic). So while it's more interesting in style and more readable than her earlier work, it's ultimately.... kind of lame. Posted by richard at January 14, 2006 12:25 AM


Well, my point was that she was offering a balanced view of "conservative" jurisprudence, but I expected that you'd find the leftward points and critique them, without acknowledging the countervailing rightward points that she made.

I can't claim to know whether a "Federalist" judge is in or out of the mainstream, because I haven't seen figures on how the American people feel about federal power and federal rights. My guess is that the people's view is context-dependent: they might like antidiscrimination laws, and they might think the ADA is too susceptible of abuse. They might disfavor EPA regs, but they might like Section 8 housing vouchers. They might prefer a standing "Continental" army to state militias, and they might think the states should get to decide whether their cancer patients can use marijuana.

But if you have figures on this, serve them up. Otherwise you're just countering one assertion about the "mainstream" with another. I'm not sure where a true "Federalist" would stand on spousal notification. You're equating "Federalist" with conservative. But what if Congress passed a spousal notification law? Would the justices on the Court who favor limited federal power — Scalia, Thomas, Roberts — strike it down as unrelated to interstate commerce? Maybe they would, maybe they wouldn't. But you'd have a true test of what they stand for.

The fact is, this article tries to interject some reason into the circus of these confirmation hearings, and to show that there's a difference, Senators, between someone with a conservative judicial philosophy and a bigot. The real matters of import are where that philosophy leads an unfettered decisionmaker (i.e., a Supreme Court Justice), whether the decisionmaker adheres to it when it would lead to a result inconsistent with his entrenched moral and ideological views, and whether any person can (or should) truly set aside moral and ideological views in judging.

A case in which "strictly applying the law" forces a judge into a repugnant result lies right at the nexus of all these questions.

I thought these were interesting questions, and that this article, coming as it does so obviously from the left, had raised the level of discourse. But by all means, let's rip her for talking about the strip-search.

This is the last comment I leave here, pal, until you agree to launch a team blog. I'm not letting you suck me in again . . .

Posted by: Phutatorius at January 14, 2006 01:51 AM

Maybe I misread the article, but while I certainly saw a small dose of (deserved) criticism for Democratic grandstanding and exageration, I also read the bulk of the "defense" of the Federalists as more than a little tongue-in-cheek. Each "I assure you they are not so bad as to actually" (rhetoric Cicero could admire) was followed by one or more crude "but's".... The asides about crying wives, revenge, hollowing out, and strip searches simply seemed to confirm this attitude.

So, rather than ignore the rightward points, I acknowledged them as jabs of their own.

I'm open to the idea that I was hyper-sensitive and that most of what I read as sarcastic was, in fact, "a balanced view" of conservative jurisprudence. Still, it's hardly the epitome of balance to admit that Federalists "have better things to do" than "systematically holding back women, [and] persecuting minorities".

Do you really, on second or third reading, think that she was trying to be fair-minded and present the Federalist view? Or do you think it more likely she was being sarcastic and dismissive, as her extended metaphor of the Federalist as alien species would have us believe?

Posted by: richard at January 14, 2006 02:12 AM