Lithwick’s Real Problem
Dahlia Lithwick’s article in Slate today makes, I think, an excellent point about the nature of the current debates over judicial nominees. She points out that the public discussion of the judiciary is, broadly speaking, dominated by the right, and that the left has yet to offer a similarly compelling script of what all of the fighting is about. She writes:
I won’t credit the efforts of the Democrats on the judiciary committee to see into John Roberts’ heart, or probe whether his kids play soccer with poor immigrant children, as efforts to put forth a competing jurisprudence. Those questions were clumsy proxies for the clumsy theory that judges should just fix life for sad people. I am calling for something else. It’s time for Senate Democrats to recognize that a) there is a national conversation about the role of judges now taking place; and that b) thanks to their weak efforts, it’s not a conversation—it’s a monologue.
What Lithwick wants is for someone to step forward and offer a compelling defense of the various versions of judicial humility in vogue amonst the legal left at present. The problem with this, she claims, is that “There’s no cheap sound bite for Justice Stephen Breyer’s notion of “active liberty” or for Cass Sunstein’s program of judicial “minimalism” or Jack Balkin’s principled “centrism.” Or perhaps there is a cheap sound bite embedded in those ideas—it simply hasn’t been excavated yet.”
I had two reactions to Lithwick’s article. My first is that it repeated the rather lame liberal trope that their arguments lack traction with the public because they are just too dang complicated and nuanced. The problem with this apologia, of course, is that contrary to how they are portrayed by Lithwick and others, the various judicial philosophies on the right are complicated and nuanced as well. The difference is that the right has found ways of boiling its philosophies down to meaningful slogans. Lithwick doesn’t really acknowledge this fact, largely because one suspects that she thinks that conservative judicial philosophies are sound-bite smokescreen for a regressive political agenda rather than jurisprudential theories. In other words, what Lithwick takes to be evidence of bad conservative theorizing is simply evidence of good conservative communication, and what she takes as evidence of superior liberal nuance is simply evidence of inferior liberal communication. Or so say I.
My second reaction is that the real problem for the left is Roe. Principled centrism and judicial minimalism are all well and good, but Roe is not a product of such philosophies. Rather, Roe comes from a different intellectual world, ultimately the world of the Warren Court and its faith in the ability of the judiciary to be a powerful engine for progressive change. Hence, minimalism and centrism can serve as conservative justifications for keeping Roe in place. They can’t tell us why Roe was a good idea in the first place. This is an inherent rhetorical weakness in the current liberal position.
Ironically, it seems to me that the liberal argument for centrism and minimalism would be much more powerful in a world in which Roe was not hung around the neck of the legal left.