Monday, July 11, 2005

A different take on Luttig

(Yes, more on the Supreme Court. Please bear with me. It's an important story, and I'll no doubt continue to write about it extensively, but, as always, I'll try to keep The Reaction interesting with a diverse array of posts in the coming days and weeks.)

Amba of the wonderful AmbivaBlog (and a great friend of The Reaction) linked to a different take on Luttig in a comment to my last post. Amba, in contrast to Julie Saltman, finds Luttig "trustworthy," "the kind of judge you want (or ought to want) on the Supreme Court." From a Chicago Tribune piece on Luttig:
As a judge, Luttig is widely considered an ardent conservative, but his record reveals his independence, as do recent analyses of his opinions by several political scientists. He has stressed, to his law clerks and in a recent speech, intellectual honesty and adherence to precedent. He tells law clerks they will be fired if they fail to show him contradicting authority on a particular issue or tell him exactly how they view the case, even if they do not share his views. His clerks praise him as a teacher -- and 40 of 42 have gone on to clerk at the Supreme Court, an unparalleled placement record.

Luttig has been highly critical of judicial activism on both sides of the ideological spectrum, in which he believes judges have decided cases based on a desired outcome instead of adhering to established law and taking that where it leads.

Well, that's promising, is it not? I've already indicated that I support Gonzales among the leading candidates to replace O'Connor, but if a second spot opens up -- and Rehnquist's retirement may be imminent -- perhaps Luttig wouldn't be such a bad choice. After all, we're not about to get a liberal or even moderate nominee. Bush will only nominate conservatives -- and even Gonzales is a conservative -- but I'd much rather have a real conservative who respects the law, who is independent, who rejects judicial activism, and who isn't out to destroy the liberal state than an unpredictable right-wing radical.

Julie may still be right that Luttig would vote to overturn Roe (and that's obviously a serious concern), but, as I do more and more research on the leading candidates, it seems to me that Luttig could (I'm not yet willing to commit) be an acceptable replacement for a conservative justice like Rehnquist -- as long as he's twinned with a relative moderate like Gonzales to replace the relatively moderate O'Connor. The right will no doubt continue to push for two hard-line conservatives to shift the balance of the Court to the right, but, at this point, I'd be willing to settle for Gonzales and Luttig.

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  • I'm not sure that overturning Roe v. Wade would be that extreme an example of judicial activism. I think abortion should be legal, but I think Roe was a poorly reasoned decision. I don't think it would be all that extreme to decide that it just doesn't make sense. The only real argument against would be don't upset the applecart, but that's a political rather than a legal analysis.

    Let's face it, most liberals want Roe preserved not because they think it's a great decision but because they like the policy. It's a little hypocritical to call for judicial restraint with respect to Roe when the original decision was probably an example of judicial activism. And liberals loved judicial activism (and still do) when they have the courts on their side.

    Having said that, I hope that Roe v. Wade is not overturned. But I think there is a real inconsistency in making Roe v. Wade the lodestar of judicial restraint. You could just as easily make the case that it was judicial activism to overturn Plessy v. Ferguson ("separate but equal").

    By Anonymous Anonymous, at 10:00 AM  

  • Matt Yglesias pokes some holes in the pro-Gonzales stance here.

    I tend to agree with him. This is a battle that was lost in November. Anything liberals do at this point needs to be geared towards winning future elections. That doesn't rule out principled opposition; it just needs to be free of delusions that we might "win" this one.

    -Tom Strong

    By Anonymous Anonymous, at 1:22 PM  

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