Legal Commentary

A propos of the Stevens vacancy, Tuan Samahon has a fun post pointing out some earlier sky-is-falling predictions about Supreme Court nominees that didn't exactly come true.  Some commenters bash him for his logic, but I think his point is well-taken on the whole.

What needs to be added to it, I think, is a sense of both the function of pre-confirmation predictions of this kind and the current (I can't say whether it is actually new) tendency of interest-group advocates and members of political parties to maintain their earlier positions in the teeth of the evidence.  On the pre-confirmation side, of course, the goal of these groups is not to accurately predict whether a particular nominee will be a disaster: it's to frame the debate, and to stir up the kinds of passions that might sway a very small number of Senators, keep the rest of them in line, and of course contribute to fund-raising efforts.

Post-confirmation, what I find startling is the current tendency of many groups to stick with their characterizations rather than look afresh at new evidence.  I think both Roberts and Alito, for instance, are unmistakably "conservative" Justices, in the colloquial rather than the exact meaning of the term (whatever that might be).  But, even if one considers the precedents they have narrowed or overruled, I think it's hard to call them swashbuckling activists.  And yet, that's exactly what some critics have called them.  In truth, just about any Justice will end up arguing that some precedents should be narrowed or overruled, and that's especially likely to arise in cases that are what Richard Posner would call "political."  Yet in the case of Roberts and Alito, such instances have given rise to accusations that they were wolves hiding in sheep's clothing.  This accusation serves the function of both confirming those who earlier accused them of being nothing but conservative activists, and excusing those who voted for their confirmation or muted their opposition, who can now say that Roberts and Alito successfully hid their true intentions.  Neither description quite fits the reality, however.  Conversely, I have been struck by the language over at Bench Memos describing Breyer, Ginsburg, and Sotomayor not just as liberal Justices -- which is true in each case -- but far left activists, leftists, liberal activists, and so on.  If they are poster children for activism or leftism, those labels have outlived their usefulness; in any event, the evidence really isn't in yet on Sotomayor as a Supreme Court Justice.  

To continue my conversation with Rick, none of this precludes believing and stating that any of these Justices is wrong, in given cases or in their general approach.  But it does counsel a little tamping down of one's rhetoric, both before and after confirmation.