Tuesday, April 6, 2010

Lost Ideological Ground

Liberals and conservatives butt heads every day in our politics. It's easy to get so caught up in the daily skirmishes that you don’t feel the ideological ground shifting beneath your feet. Sometimes, jogged by a casual remark, you suddenly recover your ideological bearings.

Eric Alterman’s piece in the Daily Beast had that effect on me. He asks whether Obama “will . . . screw the left again” by nominating an insufficiently liberal figure to replace Justice John Paul Stevens on the Supreme Court (my emphasis): 
“A strong liberal appointment to replace Justice Stevens, who’s expected to retire soon, would fire up the president’s troops ahead of a bruising election season. But Obama may seek middle ground once more by choosing Elena Kagan.  A symbol that Obama wants a fight would be the choice of . . . Cass Sunstein, formerly of the University of Chicago and now working in the Office of Management and Budget. . . .”
Don’t get me wrong: being a great admirer of Cass Sunstein, I’d be delighted were he nominated to the Supreme Court. But the notion that, by nominating him, Obama would be throwing a bone to his liberal base just shows how far the whole spectrum of respectable opinion about constitutional interpretation has moved to the right over the last 25 years. Politically, Sunstein’s a staunch liberal. But he’s a jurisprudential “minimalist” and a stern critic of the judicial philosophy (which he calls “perfectionism”) that animated “the liberal decisions of the Supreme Court under Chief Justice Earl Warren—the court that, among many other things, banned racial segregation in American; required a rule of one person, one vote; prohibited compulsory school prayer; and provided broad protection to political dissent.” (Radicals in Robes (2005) at xii.)

Take yourself back twenty-some years when a Democratic-controlled Senate, urged on by an emerging network of liberal advocacy groups and the mainstream of the legal academy, rejected the Reagan administration’s nomination of Judge Robert Bork to the Supreme Court. Bork was a hero to movement conservatives because he was the leading exponent of judicial originalism and among the most outspoken critics of judicial liberalism. During the confirmation hearings, liberal senators lit into him with the evident conviction that they had the better ideological hand to play by reading their own values into the Constitution. What else could have moved that noted moral philosopher, Joe Biden, then the Chairman of the Senate Judiciary Committee nurturing his own presidential ambitions, to exclaim during his questioning of Bork to exclaim: “I have [rights] because I exist”?

Fast-forward to last summer, when an accomplished left-of-center jurist like Sonia Sotomayor and her administration handlers chose at her own confirmation hearings to present her judicial philosophy in terms that could have been lifted from John Roberts’s presentation in the same forum. Coming from an administration with a filibuster-proof Senate majority behind it, that wasn’t a sign of ideological self-assurance. Now, a smart and militantly liberal observer is proposing Obama’s readiness to nominate someone who thinks that Roe v. Wade was probably wrongly decided (see ibid. at 104-05) as a benchmark of judicial liberalism.

Any way you slice it, that’s quite a change in the ideological landscape.

No comments: