Friday, June 29, 2007


The Advice and Consent of E. J. Dionne

Once again my good friend E.J. Dionne is not a happy camper. Some of the recent Supreme Court decisions have left him apoplectic and he wants the Senate to Just Say No!

“The Senate's Democratic majority -- joined by all Republicans who purport to be moderate -- must tell President Bush that this will be their answer to any controversial nominee to the Supreme Court or the appellate courts.” E. J. Dionne Jr. - Not One More Roberts or Alito

Now we haven’t talked together about this but I’m going to guess Mr. Dionne is fact-specific here: he doesn’t want the Senate’s Democratic majority to adopt the no-controversial-nominee rule for ALL future nominees, just those who are controversial with the likes of an E. J. Dionne. I’m also guessing that a future President Clinton, nominating a Ruth Bader Ginsburg think-a-like, will have no such diatribe directed at her for her controversial nominees.

What got Mr. Dionne so upset? What didn’t.

“Especially troubling was the opinion offered by Roberts and Alito this week eviscerating the rather modest restrictions on sham "issue" ads in the McCain-Feingold law.”

Of course, “sham” is in the eye of the beholder. Mr. Dionne doesn’t mention – so I will – that the immediate ad in question merely would have urged Wisconsin citizens to contact their Senators about an issue of importance (judicial filibusters) to the Wisconsin Right to Life organization. Their potential sin was that the ads would have mentioned both Senators by name…and one of the Senators happened to be up for reelection….and the ads were projected to possibly run within a certain amount of days of an election. [Ed. Note - Had the ad not mentioned Russ Feingold’s name - and how cool is it that one of the namesakes of that bill is now part of its evisceration - presumably there would have been no issue.]

And calling the restrictions “modest” is also rather subjective. The law essentially imposed a blackout of nearly 80 days on the ads because the closeness of the primary and general election dates overlapped the restricted days. Now if Mr. Dionne were to state that he supported “modest restrictions” on his right to write campaign pieces – masquerading as sham “OpEds” - for liberal Democrats in the days and weeks leading up to an election, well, I might be convinced that his feelings on the issue were consistent and well-thought out. Hell. I’d be impressed if he were to openly state that he thinks issue groups like should be prohibited from encouraging the people to contact their Senators – some of whom may be up for re-election – to filibuster a federal judicial nomination that may be on the docket in October 2008.

But of course that wasn’t all. He’s also upset about:

“[the Justice’s] opinion…, explicitly overturning earlier court precedents.”

That’s right, apparently there are now few qualities more important in a person’s character than respect for (a/k/a blind adherence to) precedent…except, of course, when you don’t agree with the precedent. Here’s the whole quote:

“Kennedy's opinion is a Magna Carta of gay rights, explicitly overturning earlier court precedents.” The sexual revolution continues

That was E. J. Dionne in July 2003 upon the occasion of Lawrence v. Texas. Again, I haven’t discussed this with Mr. Dionne but I’m going to infer that when he likens an opinion to the Magna Carta, he’s agreeing with it.

That was then, this is now:

“"The court (and, I think, the country) loses when important precedent is overruled without good reason," Justice David H. Souter wrote for the dissenters. Exactly. But upsetting precedent, directly or indirectly, is a major goal of this new conservative majority.”

Worse for the court (and the country) is when UNimportant precedent is upheld for no good reason.

Finally, there’s this:

“If another conservative replaces a member of the court's moderate-to-liberal bloc, the country will be set on a conservative course for the next decade or more, locking in today's politics at the very moment when the electorate is running out of patience with the right.”

What moderate-to-liberal bloc? Which of the four Justices – Stephens, Ginsburg, Souter and/or Breyer – make up the moderate wing of that bloc? And if the electorate is truly running out of patience with the right, the good thing about the so-called conservative decisions is that generally legislative fixes are possible (except, of course, if you’re trying to restrict political speech). For example, if Roe v. Wade was overturned tomorrow, each state would be free to legislatively set – or not set – their own rules regarding abortions. In Maryland we did it by referendum in 1992 – meaning such an overturning would have no effect here. To the extent that other states haven’t or wouldn’t codify Roe could just mean the electorate’s patience hasn’t quite run its course.

Well, at least credit Dionne with being consistent in his desire to ignore the Constitution. His approaches to both jurisprudence and judicial nominations are all about political results regardless of what the Constitution actually says.
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