We're in the 21st century now, dear, and all of the decisions you have cited are the products of the 20th century.
If you think that the Texas sodomy case is some indication of a liberal judiciary, well, what can I say except that you seem to misunderstand that conservatives and libertarians want the government out of everyone's bedroom. I certainly do.
It doesn't bother me that homosexuals do what homosexuals have done for centuries so long as I don't have to witness it or participate.
The Texas sodomy case was a libertarian decision, not a liberal one, though the two are often confused.
You want to go back, paint a set of red "Hs" on the foreheads of homosexuals?
Where does it stop?
Here's a very nice description of why some, like you, who don't read the statistics or the studies and shoot from the hip on this liberal vs. conservative judiciary crap are so often flat wrong.
Get rid of you ideological filters, it's refreshing when you base your comments on facts instead of beliefs asserted as facts.
law.com
This guy sets forth my arguments better than I do--and, hey, he is a liberal, but what he says is compelling, not that I object to anyone holding on to the fantasy of pointy headed intellectual judges ruining the country. That silly ideologically-driven balloon is too much fun to puncture:
wampum.wabanaki.net
Liberal Federal Judges?
While some of us on the left view the right as a monolith, the truth is that the right is made up of a coalition of various groups. Libertarians, big business types, religious, cultural, and social conservatives, main street business people, and neo-conservatives all have a seat inside the right’s tent. Many of those groups have little in common. A poor, rural, Southern, religious conservative does not exactly run in the same crowd as a rich, yankee, Wall Street merger and acquisition tycoon.
What holds that coalition together?
Mark Kleiman suggests one common element of the various groups on the right is that they support polices that “as a practical matter, increase the share of the national income going to the top 1% of the distribution and decrease the shares going to the bottom tenth, bottom quartile, and (in most cases) bottom half.”
One of Mark’s readers, Steve Teles, is a political scientist at Brandies. He emails Mark and suggests a different commonality:
What holds all those folks on the conservative side together, fundamentally (along with a few substantive issue) is hatred of liberals. Disgust, on a very deep, gut level, and a sense that conservatives are marginalized in the institutions liberals control and a sense that they manipulate language and procedure to control those institutions and to keep conservatives out.
One institution that conservatives claim is dominated by liberalism is the Federal Judiciary. Conservatives have been complaining for half a century that liberal, activist judges on the Federal bench are laying waste to the values that conservatives hold dear.
The specific issues identified by conservatives to support that position include abortion, rights of criminals, school prayer, school desegregation and affirmative action.
That argument is as dated as Austin Powers. Each of those decisions occurred at least a generation ago. The seminal abortion decision, Roe v. Wade was decided in 1973. Affirmative action was approved in the 1978 Bakke decision.
Miranda was a 1966 case. Schools were desegregated by the 1955 Brown vs. Board of Education case. School prayer was addressed in the 1962 case of Engel v. Vitale.
Does it seem strange that conservatives claim that the current Federal Judiciary is liberal based on cases from twenty-five to fifty years ago?
The only recent “liberal” decision extending individual rights that I can think of off the top of my head is the Lawrence case overturning the Texas sodomy statute. That case was a 6-3 decision with four of the seven Republican-appointed Justices in the majority. If Lawrence is to be the example of recent liberal judicial decisions besieging conservative values, perhaps conservatives should take it up with the Republican politicians who appointed those Justices.
The conservative argument that the Federal Judiciary is controlled by liberals may have been true at one time but is clearly not the case today. That point can be demonstrated in three ways. First, the numbers show that it is Republican Presidents, not Democrats who, by and large, have shaped the current Federal Judiciary.
Of the nine current members of the Supreme Court, seven were appointed by Republicans. In the last thirty-five years (since 1969) there have been thirteen appointments to the Supreme Court. Republican Presidents have made eleven of those appointments while Democratic Presidents have made two.
At the Circuit Court of Appeals level, the pattern remains the same. Since 1969, Republican Presidents have appointed 211 Judges to the Circuit Courts. Democrats have appointed 122. Since 1969, Republican Presidents have appointed 813 trial Judges to the District Court bench while Democrats have made 508 such appointments.
If the Federal Judiciary is comprised of a bunch of liberal activists, it is the GOP who put them there.
The second method of showing that the Federal Judiciary is not dominated by liberals is to look to policy prescriptions advocated by conservatives. For instance, Republican tort reform proposals would funnel much class action litigation into the Federal courts and to give more power over such suits to Federal judges. If conservatives really believe that the Federal courts are infested with liberal, activist judges, why would they want to provide them with more power and control rather than less?
Finally, the idea that the Federal courts are a bastion of liberalism does not comport with my experience. When I was a defense lawyer representing some of the nation’s largest companies, I removed state court suits to Federal court whenever possible. Similarly, when I represent human beings against large corporations, the defense routinely removes the action to Federal Court if my complaint permits them to do so. It would be a strange coincidence if corporate America was seeking a more liberal, judicially active forum while poor, powerless individuals preferred the more conservative tribunal.
I have long wondered why conservatives keep making the argument that the Federal bench consists of a bunch of liberals when it is plain that it is just not so. Thanks to Steve Teles, I now understand. The factual basis for such a contention is irrelevant. The fiction that the Federal courts are a bastion of liberalism is politically necessary to keep the conservative coalition together. The idea of a liberal judiciary cuts across the right's coalition and gives shape and direction to the anger of the various parts of the coalition. It unites the northern, urban, M&A tycoon with the rural, socially conservative Southerner.
Regardless of how conservative the Federal courts become, conservatives will always argue that the courts are liberal because the argument is politically necessary. The political imperative trumps the reality. |
