Where Left Is Right / The Old Site

One of a blogger's great pleasures comes from the occasional opportunity to cite one's earlier writings on a topic of current interest. Thus, I happily point to my August entry, posted before John Roberts's confirmation (before Rehnquist died, for that matter). In that post, I argued that Roberts's famous "modesty" in his views on the role of the judiciary vis-à-vis the other two branches was in fact an abrogation of responsibility:

[Citing a memo Roberts wrote on behalf of former Attorney General William French Smith:]

Congress and the Executive can be checked by the judiciary when they exceed their powers, but the judiciary is unique among the three branches in that it is the judge of its own power. As Justice Stone put it, "the only check upon our own exercise of power is our own sense of self-restraint." ... In such circumstances it is incumbent upon the other branches to aid the courts in their exercise of self-restraint. This is precisely what the Department of Justice will be doing in the arguments its lawyers present in litigation. Our effort is one to persuade the courts, who of course retain the ultimate power of decision.

A conscious effort in our litigation to curb judicial activism should not be viewed as an effort to politicize the courts. The federal judiciary is an independent branch of government, purposefully and carefully insulated by the Framers from direct popular pressure. The reason the courts were insulated from popular pressure, however, was precisely because their function was not conceived to embrace policymaking. Responsibility for policymaking in a democratic republic must reside in those directly accountable to the electorate.

You've gotta love that phrase, "to aid the courts in their exercise of self-restraint." This is Roberts trying to have it both ways -- starting out, apparently conciliatorily, by conceding that the legislative and executive branches may not interfere with the courts; and then following that "concession" with the mealy-mouthed claim that the other two branches must "help" the courts to "restrain themselves."

This is bullshit. Conservatives foam at the mouth about how "activist" judges fail (in the cons' eyes) to honor the Constitution, and then they turn around and assert stuff like this which has no Constitutional basis at all. In fact, the only executive and legislative oversight of the judiciary which the Constitution allows is (a) to nominate judges to the Federal bench (executive branch), and (b) to confirm or reject the nominations (legislative). The oversight is long-term and in perpetuity, not ad-hoc.

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I'd also take issue with the assertion that the reason for insulating the courts from "popular pressure" was to forbid "policymaking." Here's the deal: Whatever the reason for it, you must grant that the courts are in fact meant to be insulated from popular pressure (the Roberts-written passage grants it); you then must also grant that this includes includes political pressure by the people's elected representatives in the executive and legislative branches. You, O President, go ahead and nominate whomever you want; and you, Senators, go ahead and confirm or deny them the appointment. And in doing so, you agree to be bound by your appointees' decisions, and the decisions of your predecessors' appointees -- just as your successors will agree to be bound by yours.

This isn't "activism," for chrissake. It's the way the system prevents activist tampering with the judiciary.

This argument is made anew in Dahlia Lithwick's Op-Ed piece in today's NYT, this one on the subject of Harriet Miers:

How could a man [i.e., The Weasel] who got it so right with John Roberts get it so wrong with Ms. Miers?

If the lesson of the Roberts confirmation was to pick someone superbly qualified and watch him whiz through his confirmation, why did President Bush almost deliberately flout that wisdom by nominating an inexperienced crony?

[...]

... nowhere is John Roberts more deferential as a judge than when it comes to the executive branch. In his rulings when he sat on the United States Court of Appeals for the District of Columbia, he offered expansive readings of presidential authority. He ruled on that court that the Geneva Conventions do not confer on so-called enemy combatants any individual rights. And he was unwilling to answer at his hearings whether Congress has the power to end a war started by the president.

If you think of John Roberts as the justice who will urge a far more sweeping judicial deference - particularly to the executive branch - the subsequent Miers nomination makes sense. If Mr. Bush wants to refashion the courts into a weaker, passive entity that exists primarily to check its own institutional prerogatives, then a former White House counsel like Ms. Miers is the perfect choice.

Lithwick takes it further, though, to its logical (and disturbing) conclusion:

The president has long claimed that Congress and the courts were usurping his powers. The hallmark of his presidency has been efforts to reclaim those powers, be it through Patriot Act provisions that curtail judicial oversight, his invention of new courts to deliver justice-lite to Guantánamo detainees or threats to veto legislation that would prohibit torture.

Now he has had two openings to render the court toothless. He has filled those vacancies with a brilliant jurist who apparently believes the court should sit on its hands in perpetuity, and a place-filler -- his new judicial ideal.

Again the question arises, as it does almost minute by minute in Weasel World: How in the world can anyone who really cares about what happens to this country possibly support The Weasel in any of the evil-goofball enterprises he lays his hands to?