Legal Commentary

Our friend and colleague Rick Garnett has a post at the National Review's Bench Memos website offering advice for upcoming discussions of the Stevens opening on the Court.  I agree with him that the word "mainstream" -- as in "out of the mainstream" -- should generally be avoided.  The word is neither especially descriptive nor especially useful.  Much better, surely, to candidly say that one believes a nominee is right or wrong than that he or she is in or out of the mainstream.

I'm not sure about this statement, though: "[N]o one who says this nomination doesn?t really matter, because the president is simply ?replacing one liberal with another,? should be taken seriously. The very smart and experienced journalists who cover the Court know that Justice Stevens?s retirement gives the president a huge opportunity, one that will shape the Court?s work and direction for decades."  I don't think it's wrong; I'm just not sure it's helpful.  I don't think too many people actually say that a particular nomination doesn't matter at all, and most people agree that every nomination could potentially shape the Court's work; but that doesn't mean some nominations don't present more obvious sea-changes in the Court's direction than others.  The stakes are what they are; I'm not sure there's much purpose in making them seem graver than they are, all things considered.

And I'm pretty sure I respectfully disagree with Rick when he writes: "No Democratic senator who voted against Roberts or Alito has any standing to object to the decision by any Republican senator to vote against the president?s eventual nominee, nor does any Democratic who praised, during the Bush administration, the filibuster as a vital protection for minority interests in a democracy has any standing to object to any Republican attempt to use the filibuster in the context of the upcoming nomination battle[.]"  I should think it's just fine to vote against Roberts or Alito and for Sotomayor or Stevens's replacement, and vice versa.  Whether one has "standing" to do so depends not on the votes themselves, but on the reasons for the votes.  Someone who thinks that all nominees should take position "X" on a given issue can consistently vote for or against particular nominees on that basis; the problem of consistency only arises if one wraps up one's views in inconsistently applied platitudes, such as those concerning the "mainstream" nature of a nominee or the obligation (or lack of obligation) to support a President's choices.  

Although I disagree with some of what Rick has to say in his post, I commend him as always for his temperate tone.  I have no objection to trying to set a reasonable and consistent tone for the debates to come.  I hope he'll take the opportunity while he's at Bench Memos to offer some helpful advice to regular posters there like Ed Whelan and Wendy Long, who both strike me as routinely intemperate in their writing.  In fairness, when Rick writes in the introduction to his post that he hopes to help "distinguish the analysts from the hacks," I do not know in which category he would place Long or Whelan.  But I think they, as much or more than many other commentators, would benefit from his instruction.