We like to beat the crap out the New York Times, and they deserve to be harshly criticized. But, when a story like Sandra Day O’Connor’s retirement comes along, the Times shows why they are still considered the best news outlet in the country. Their coverage today is amazing.
Check out their breakdown of the likely candidates.
And check out Jeffrey Rosen’s piece, excerpted below:
Since the 1980’s, the most influential movement in conservative legal circles has insisted that the text of the Constitution should be strictly interpreted as it was originally understood by its framers and ratifiers. The leading originalist (who also sometimes calls himself a textualist) is Justice Antonin Scalia, who insists that respect for original understanding is the only way of separating law from politics.
“When this president and this party talk about strict constructionism or faithfully interpreting the law, they mean textualism and originalism,” says Jack Goldsmith of Harvard Law School, a former Bush administration official.
Many of the names of President Bush’s shortlist, like Judge Michael McConnell of the United States Court of Appeals for the 10th Circuit, are widely considered to be originalists, although not all of them embrace the label.
Libertarian/Constitution in Exile Conservatives
This strain of judicial conservatism is consistently anti-government and pro-individual liberties, especially including economic liberties. On the current court, the leading representative of these libertarian conservatives is Clarence Thomas.
“Sometimes, the libertarian conservatives are associated with originalism, because in many cases the original understanding comports with their conception of limited government,” says Professor Goldsmith of Harvard. “But sometimes there is a conflict, and the real commitment of the libertarians is to individual liberty, not original understanding or judicial restraint.”
For this reason, libertarian conservatives like Justice Thomas are even more willing than traditional originalists like Justice Scalia to overturn decades of judicial precedents with which they disagree and to encourage judicial activism in cases protecting economic liberties.
The favorite Supreme Court candidate of the judicial libertarians is Janice Rogers Brown, recently confirmed by the Senate to the United States Court of Appeals for the District of Columbia. Liberals consider her one of the most radical potential nominees.
Traditionalist Conservatives
Traditionalist conservatives believe that judicial wisdom is built up slowly, and judges shouldn’t depart radically in any direction from the Constitution as it has been interpreted in case law over the ages. “The traditionalist conservatives were in the judicial mainstream for at least half a century after the New Deal,” says Professor David Strauss of the University of Chicago. Their leading representative during the Warren era was Justice John Marshall Harlan. On the current court, they are best represented by Justice David Souter.
Traditionalists are reluctant to overturn judicial precedents except in the exceptional cases, like Brown v. Board of Education, which outlawed school segregation. On Mr. Bush’s shortlist, the leading traditionalist conservative is J. Harvie Wilkinson of the United States Court of Appeals for the Fourth Circuit, whom some administration officials reportedly consider too moderate.
Pragmatic Conservatives
Judicial pragmatists believe in reaching practical decisions that will help the institutions of government function smoothly. They are less concerned with the text or history of the Constitution and more interested in empirical evidence about the effects of their decisions in everyday life.
“Lewis Powell, Sandra Day O’Connor’s judicial mentor, followed the same trajectory as Justice O’Connor: they both began as tradition-minded conservatives and ended up as conservative-minded pragmatists,” Professor Goldsmith says.
In addition to Justice O’Connor, other pragmatists on the current court are Chief Justice William Rehnquist and Justice Stephen Breyer. All voted last year to regulate the detention of enemy combatants over dissents by Justices Scalia and Thomas.
“From my perspective, Justice O’Connor didn’t give enough weight to the role of text, history and principle in constitutional law,” says Steven Calabresi of Northwestern University Law School, a leading conservative scholar. “I think one concern with Attorney General Alberto Gonzales, who is on President Bush’s shortlist, is that he would be too much of a pragmatist as well.”
Social conservatives in particular fear that Mr. Gonzales is too liberal (and too pragmatic) on questions involving affirmative action and abortion.
Deferential Conservatives
One of the oldest strains of judicial conservatism says that courts should play a very limited role in American politics and should rarely, if ever, strike down laws passed by the state legislatures and Congress. On the Supreme Court, the leading advocates of judicial deference to legislatures were Felix Frankfurter and, during the Warren era, Byron White.
During the postwar period, conservative presidents starting with Richard Nixon claimed to want to appoint justices who would allow political battles to be fought in legislatures, not courts. But today, few liberal or conservatives justices or judges consistently believe in judicial deference.
“There is no consistent devotion on the right or the left for judges who defer to the political process across the board,” says John Yoo, a law professor at the University of California at Berkeley and a former Bush administration official. “I don’t think any of the judge pickers believe in it either.”
How will President Bush choose among a dizzying variety of judicial conservatives? “I think O’Connor’s leaving makes Bush’s job easier,” Professor Yoo says. “He’s now free to replace O’Connor with a like-minded pragmatist like Gonzales who will win political points with Hispanics but upset his base. Since Bush is likely to have a chance to replace Chief Justice Rehnquist, too, he could reassure social conservatives that they’ll get a reliable originalist for the chief’s slot.”
Other conservative scholars think the game of musical chairs might lead to a different result. “I think Bush will focus on replacing Justice O’Connor with someone who shares his stated philosophical goals of originalism and textualism,” said Professor Goldsmith of Harvard. “Once he does that, he can focus on what criteria he will use in selecting a chief.”
With one Supreme Court nomination imminent, and another very likely on the horizon, it’s clear that Mr. Bush will have an opportunity to satisfy and infuriate conservatives of many stripes. Whatever choice he makes will define not only the Supreme Court but his own conservative legacy.
