Comments on: Blog Round-Up – Saturday, February 25th

By: Maryland Conservatarian

Maryland Conservatarian — Mon, 27 Feb 2006 20:03:50 +0000

To follow up on Mr. Scheideggar’s last comment, perhaps r.friedman can point point to a SINGLE position (ever) that the Federalist Society endorsed, lobbied for or even just filed an amicus brief on that r.friedman disagrees with or finds odious. The Federalist Society membership may be conservative/libertaraian but the Society itself is a model of nonpartisanship….esp. as compared to the ACLU or the ABA.

By: Kent Scheidegger

Kent Scheidegger — Mon, 27 Feb 2006 17:54:14 +0000

“as for pledges of allegiance, i’m referring to grover nyquist lunches, federalist society, aei, and other requisite displays of ceremonial deism.”

Well, r., having been a member of the Federalist Society for many years, including 2 as chairman of the Criminal Law Practice Group, I can state unequivocally that the real organization bears no resemblance whatever to what you describe. There is absolutely no requirement to pledge fidelity to any set of conservative beliefs, and disagreements among members on particular issues are quite common.

It is painfully evident that your source of information about conservative organizations is wildly inaccurate. I suggest you find some new, and more reliable, sources.

By: Dan

Dan — Mon, 27 Feb 2006 17:30:05 +0000

Calling Justice Ginsburg “outside the mainstream” does not carry much weight when one takes into account her record on the D.C. Circuit. As noted by Ruth Marcus in the Washington Post a few months ago, then-Judge Ginsburg’s votes on the court of appeals were most closely aligned with Judges Silberman and Starr. In split decisions, she voted 85% of the time with Judge BORK, and only 38% of the time with Judge Wald. Thus, to suggest that the same standards applied to Alito would have sunk Ginsburg as a nominee is quite a stretch. (Not to mention the fact that Orrin Hatch suggested her as a consensus nominee to President Clinton.)

Furthermore, the “attack” on Justice Alito made above was neither “gratuitous” nor “misinformed,” as Mr. Scheidegger suggests. Not only did Alito express pride in his work against reproductive rights and affirmative action in his 1985 job application, his 15 years on the Third Circuit mirror the positions he took in that application and in memoranda he produced on a variety of issues in his various executive branch posts. That’s not to say he was a rank ideologue, shaping the law willy-nilly to his own predilections, but where there was play in the joints of the law, then-Judge Alito’s vote was notably consistent with his expressed personal views, views that reflected, then and now, the policy choices of the right wing of the Republican Party. Between Alito and Ginsburg at the time of their nomination, there is no question but that Ginsburg had proven herself a far more neutral arbiter of the law not beholden to any particular political program.

By: r.friedman

r.friedman — Mon, 27 Feb 2006 01:00:40 +0000

kent, ginsburg never wrote anything like Alito’s job application when he said how glad he was able to be involved in implementing the Reagan policy.
as for pledges of allegiance, i’m referring to grover nyquist lunches, federalist society, aei, and other requisite displays of ceremonial deism. also i just finished watching a right wing attack on W for not being true to the Reagan ideals.
md, there are two schools of thought on this blog. one was called “legal realism” when proposed by the left, but which John Yoo has taken into legal surrealism, which says that law is politics by another means. the other might be called “rule of law” that says law is a socially accepted, essentially neutral means of case-by-case dispute resolution. it is not fruitful for people to disagree when one works from one position and another from the other.
if looked at from the legal realist point of view, ginsburg and breyer are both squibs. there were Mike Tigars and NLGers who could have been appointed who would have challenged the criminal, indian, voting rights and other decisions of the Rehnquist court (and pulled down the temple over Bush v. Gore). then maybe all the republicans would have acted like Orin Hatch.
but looked at from the “mainstream” point of view, ginsburg’s appointment has to be seen as like that of Thurgood Marshall — someone who saw a place where the law was creating not healing divisions and worked to make it more effective — sort of FDR saving capitalsm from itself.

By: Maryland Conservatarian

Maryland Conservatarian — Sun, 26 Feb 2006 16:44:19 +0000

My earlier post was not (or at least wasn’t meant to be) an attack on Justice Ginsburg. I, for one, have no problems with people coming to the Court with all kinds of experiences – including political. My point is merely that law clerks shouldn’t be held to a more stringent standard here.
But to your larger point of “conservative attacks” – the body of Justice Ginsburg’s work (cases, writings, speeches etc.) prior to her coming onto the Court provided as much (probably more)fodder for “outside the mainstream” attacks on her nomination yet she (and Justice Breyer) was treated immeasurably better by Republicans than any Republican nominee of recent memory has by Democrats. Conservative attacks? Trust me – had the Republicans applied Kennedy/Schumer-attack type tactics against Justice Ginsburg….well, she wouldn’t be Justice Ginsburg.

By: Kent Scheidegger

Kent Scheidegger — Sun, 26 Feb 2006 16:05:24 +0000

r.friedman, you were doing fine until the last paragraph, with your gratuitous and misinformed attack on Justice Alito and conservatives generally.

What is the basis for your claim that the conservative movement “requires frequent assertions of faith in a wide range of social and economc positions”? I have never been asked for such an assertion. Where is the “objective reality” in your attack?

By: r.friedman

r.friedman — Sun, 26 Feb 2006 13:47:55 +0000

I fail to see the objective reality of the conservative attacks on Justice Ginsburg. For example, calling her legal work “political activity” is true only in the sense that law represents political power, not as a partisan.
Over the years, the ACLU has been able to recruit lawyers whose interests coincide with those of the ACLU in a particular area, without the necessity of accepting the full range of ACLU positions. Justice Ginsburg is one such. Her work was directed toward achieving equality of rights for women before the law. This position offends fundamentalists who believe that the man is the master of the family, but is certainly in the mainstream of US values. She remained professorial, fond of procedural niceties, and was never involved in organizational leadership.
Unlike Alito, she never adopted the political program of any organization as her own. Conservatives are viewing her through the lens of their own movement, which requires frequent assertions of faith in a wide range of social and economc positions. Ginsburg, like O’Connor, is certainly a product of her times, but is not a product of the ACLU:

By: Maryland Conservatarian

Maryland Conservatarian — Sat, 25 Feb 2006 18:27:48 +0000

Professor Wu’s comments are certainly calmer than those of Professsors Rhode or Gillers on this subject but even he exhibits a certain wariness toward a more experienced cadre of law clerks becoming the norm. I understand he is critical of those coming with more political experience (however defined) but I don’t understand why a law clerk should be held to a more stringent standard here than a potential Justice. And after the deafening silence on the left about the political activities of Justice Ginsburg prior to her ascension to the Court, well…remind me once, again what’s the problem here?
Of course, these criticisms are coming from professors at schools like Stanford, NYU and Columbia and I can understand why any trend that could lessen the influence of a law school’s name in obtaining prestigious clerkships is a trend that needs to be resisted.