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September 21, 2008


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Frank M. Cook

I think concentrating solely on whether a Justice is "liberal" or "conservative" misses too much. When the Republicans first started making appointments in the eighties, they railed against the activism of the Warren Court and appointed conservatives. To their surprise, not much changed. Essential to the notions of conservatism of these first new justices was the doctrine of judicial restraint. Today we view these early Republican appointees as moderates if not outright liberals. But are the more recent appointees more conservative or are they just more activist? Without any doubt they were appointed to change the law and they have set about to do just that.

I must admit that I am no longer able to understand what the labels liberal and conservative mean today. The Republicans have managed to wring all of the negatives out of conservative and all of the positives out of liberal. When I was young, conservative meant that you wanted to preserve the status quo and liberal meant you wanted to try new things. I vividly remember the first time I heard someone call himself conservative in public. It was about 50 years ago and I was riding a city bus to high school. I remember being completely amazed that anyone would admit publicly that they were not open to trying new ideas.

In some ways perhaps all these labels (liberal, conservative, restrained, active) may miss the point. I fully agree that we need more justices who share "the understanding that in a democratic society the most central responsibility of the Supreme Court is to ensure that the majority respect the rights of the oppressed, the unrepresented, and the disenfranchised," but I disagree that there should be anything liberal about this view. It is time to reach across party lines and to build a new consensus around the essential American values of liberty and opportunity for all.



Republican Presidents don't exactly have a consistent track record of appointing conservative justices. O'Connor and Kennedy are centrists. Souter and Stevens might has well have been appointed by Carter or Clinton. Even Roberts is more centrist than conservative. One thing I will say is that Democrat Presidents never "disappoint" in their picks. When was the last time a Democrat-appointed Justice turned out to be a conservative.

But you also falsely assume that McCain will pick arch-conservatives. He's not an arch-conservative himself. And he might, I fear, if elected only appoint Justices that support McCain-Feingold - hardly a conservative piece of legislation. I think he will appoint, again if elected, the type of Justices that a President Ford would appoint.

Chris Roach

"What makes a justice “liberal” is the understanding that in a democratic society the most central responsibility of the Supreme Court is to ensure that the majority respect the rights of the oppressed, the unrepresented, and the disenfranchised."

Does this include gun owners, Catholics, and the unborn? I don't think the liberals you are so in love with have ever given a hoot about these maligned groups.


Right on Roach. That's what I'm saying. Does this include Plutonium-239 collectors, Bokonists and the undead? I don't think the liberals Professor Stone is so in love with have ever given a hoot about these maligned groups either. Bokonist rights now!


LAK, Reductio ad absurdum.

Ridiculing minorities you disagree with, by fabricating strawmen, really isn't a response.

Chris Roach actually had a very good point. Any time there is a disagreement in individual rights versus the collective majority rights, liberal judges (whatever that may be) should recall that pure democracy is despotic. We wouldn't really need a Bill of Rights, if we were just willing to abide by the popular vote.

You are entitled to think minorities mistaken or having bad faith; that's the basis of most kinds of discrimination. But SCOTUS can ill-afford the luxury of that kind of immature emotion.

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