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Lithwick’s Real Problem

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  1. Simon says:

    My biggest problem with Lithwick’s article – and I have several, but this is something that really, really bugs me – is her continuing disingenuous attempt to conflate original intent with originalism (“he means fundamentalism not in the religious sense but in terms of rigid adherence to original intent”). Her colleague, Michael Kinsley, does the same thing today (“Republicans have been waving this flag for decades, reverencing . . . original intent”). And of course Cass Sunstein and Jack Balkin seem committed to the idea that if they repeat it enough it becomes true. My question has to be, if they were to be candid, do they really have some genuine confusion about the differences between originalism, or is this just a silly attempt to make mud stick that otherwise wouldn’t?

    Surely there are valid criticisms of the right wing regarding Judges. Do you need any better illustration than the right wing’s faithweather friend to the original understanding than the anger at the ninth circuit’s decision in Fields v. Palmdale School District? See e.g. RedState; My Vast Right Wing Conspiracy; cf. my comments at Centerfield.

    Maybe Dahlia should consider that if her colleagues would spend less time knocking down straw men (by demolishing original intent, they are, as Bork puts it, taking a keep which is not only indefensible but undefended), and pushing singularly absurd misdefinitions of judicial activism that no one with a brain would buy (which I tried to explain here at part I), they might have more time to form a coherent statement of why conservative judicial theories are problematic for liberals.

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