Monday, November 22

supremes

Jeff Rosen, over at TNR digital, runs through eight supposed top-of-the-list-ers for Bush Court nominees. He separates them into two groups: principled conservatives and conservative activists. The descriptions of each judge, along with his brief intro and conclusion, do well to fight the great rhetorical trick that is "activist judges."
Here, Rosen describes four potential nominees as activists; generally libertarians that want to undo post New Deal precedent and return the Constitution to "exile." The other four, argues Rosen, believe the courts should defer, as much as possible, to legislators. Always.
Here are bits from Rosen's intro and outro:
According to administration officials, there are eight candidates on Bush's short list, all of whom fit the bill. Senate Democrats will try to distinguish between conservatives and moderates by focusing on the candidates' views of Roe v. Wade. But the more important distinction is between principled conservatives (who believe in deference to legislatures through judicial restraint) and conservative activists (who are determined to use the courts to strike at the heart of the regulatory state). The activists want to resurrect what they call the "Constitution in Exile," enforcing limits on federal power, that have been dormant since the New Deal, in part through narrow interpretation of the interstate commerce clause.
...
Democrats have to be realistic about a Bush nominee to the Supreme Court rather than be distracted by Roe v. Wade. Their best hope lies in a principled conservative judge as opposed to an activist eager to undermine Congress's power in the name of the Constitution in Exile. By this measure, Alito, Brown, Clement, or Garza may be worth a Senate fight. Luttig, McConnell, Roberts, or Wilkinson, by contrast, could well be distinguished appointments.

Good article if you want a quick review of the nominees we'll be hearing about oveer the next four years.