I had intended to write something about eminent Yale law professor Bruce Ackerman’s recent attempt to shoot down future Bush Supreme Court nominees, but Stuart Buck beat me to it.
At the heart of Ackerman’s screed is his distinction between Good Conservatives (the traditional kind, the ones who frequently vote with liberals) and the new Bad Conservatives, who are “revolutionary.”
There are two very different kinds of conservative. The worldly statesman, distrustful of large visions and focused on the prudent management of concrete problems has long been familiar. But Bush has more often relied on neo-conservatives with a very different temperament. They throw caution to the winds, assault the accumulated wisdom of the age, and insist on sweeping changes despite resistant facts. Law is a conservative profession, but it is not immune to the neo-con temptation. The question raised by the coming vacancies to the Supreme Court is whether American law will remain in conservative hands, or whether it will be captured by a neo-con vision of revolutionary change. The issue is not liberalism v. conservatism, but conservatism v. neo-conservatism.
Good Conservatives, like Sandra Day O’Connor, are, Ackerman says in various places, “seasoned,” “genuine,” “pragmatic”; their “defense of fundamental rights is part of a discriminating philosophy of judicial restraint.”
By contrast, the Bad Conservatives are “extreme” — “remarkably destructive” “radical rightists” who are attempting to promote a “[s]weeping constitutional revolution.” They are in favor of “striking down laws protecting workers and the environment” and they support “the destruction of basic civil liberties….”
I don’t think he likes them very much.
Ackerman is obviously correct to note that the Rehnquist/Scalia/Thomas strand of judicial conservatism is different from that of Justices Frankfurter or Harlan (the second) or O’Connor (if she, in fact, ever was a conservative in any meaningful sense). It is certainly his prerogative to disapprove of it, and even to urge Democrats to filibuster the nomination of any such conservatives in the future, even though his opposition seems to be grounded much more in policy than principle. For example:
The court has recently and most notably reaffirmed the use of well-crafted affirmative action programmes by a vote of five to four, and upheld new statutory restrictions on large political contributions by the same margin. These results will change with a further shift to the right: there will be no affirmative action, and there will be a dramatic cut-back on permissible controls over campaign slush-funds.
I am, of course, most struck by Ackerman’s reference to affirmative action, since his devotion to it is so completely at odds with his ostensible objection to the bad new conservatives’ radical, even revolutionary, abandonment of the principles of the good old conservatives.
In my opinion there has been no more radical, revolutionary, or dramatic reversal in our intellectual or legal history than the liberals’ rejection of their traditional commitment to the formerly core principle that everyone has a right to be treated without regard to race, religion, or ethnicity.
Classifications and distinctions based on race or color have no moral or legal validity in our society. They are contrary to our constitution and laws.
That was not written by Rehnquist or some other radical right extremist. It was written by Thurgood Marshall in his brief for the NAACP in Sipuel v. Oklahoma State Board of Regents, 332 U.S. 631 (1948).
“There is no understandable factual basis for classification by race….”
That was written by neither Scalia nor Thomas but, once again, by Thurgood Marshall, in a brief for the NAACP in Sweatt v. Painter, 339 US 629 (1950). Marshall, in fact, made his reputation by arguing for colorblindness in NAACP briefs written over many years. A few representative examples:
- racial criteria are irrational, irrelevant, odious to our way of life and specifically proscribed under the Fourteenth Amendment (McLaurin v. Oklahoma, 1950)
- you cannot use race as a basis of classification (Oral argument, Briggs v. Elliott, 1952)
- you cannot use race as a basis of classification…. the Fourteenth Amendment compels the states to be color blind in exercising their power and authority…. race is an irrational basis for governmental action under our Constitution (Brown v. Board of Education)
There are many more examples of the NAACP’s devotion to colorblindness, but you get the idea. Nor were the NAACP and Thurgood Marshall alone in making these arguments. Colorblindness, in fact, was a central theme of liberalism for generations.
There is no superior person by constitutional standards. A DeFunis who is white is entitled to no advantage by reason of that fact; nor is he subject to any disability, no matter what his race or color. Whatever his race, he had a constitutional right to have his application considered on its individual merits in a racially neutral manner. …. The key to the problem is consideration of such applications in a racially neutral way. …. The Equal Protection Clause commands the elimination of racial barriers, not their creation in order to satisfy our theory as to how society ought to be organized.
Again, no radical right Republican extremist wrote that. It was written by Justice William O. Douglas, one of the foremost liberals ever to serve on the Supreme Court, in DeFunis v. Odegaard, 416 U.S. 312 (1974)
We cannot agree with the proposition that deprivation based upon race is subject to a less demanding standard of review under the Fourteenth Amendment if the race discriminated against is the majority rather than a minority … and we do not hesitate to reject the notion that racial discrimination may be more easily justified against one race than another….
Regardless of its historical origin, the equal protection clause by its literal terms applies to “any person,” and its lofty purpose, to secure equality of treatment to all, is incompatible with the premise that some races may be afforded a higher degree of protection against unequal treatment than others….
The divisive effect of such preferences needs no explication and raises serious doubts whether the advantages obtained by the few preferred are worth the inevitable cost to racial harmony. The overemphasis upon race as a criterion will undoubtedly be counterproductive: rewards and penalties, achievements and failures, are likely to be considered in a racial context through the school years and beyond. Pragmatic problems are certain to arise in identifying groups which should be preferred or in specifying their numbers, and preferences once established will be difficult to alter or abolish; human nature suggests a preferred minority will be no more willing than others to relinquish an advantage once it is bestowed. Perhaps most important, the principle that the Constitution sanctions racial discrimination against a race — any race — is a dangerous concept fraught with potential for misuse in situations which involve far less laudable objectives than are manifest in the present case….
To uphold the University would call for the sacrifice of principle for the sake of dubious expediency and would represent a retreat in the struggle to assure that each man and woman shall be judged on the basis of individual merit alone, a struggle which has only lately achieved success in removing legal barriers to racial equality. The safest course, the one most consistent with the fundamental interests of all races and with the design of the Constitution, is to hold, as we do, that the special admission program is unconstitutional because it violates the rights guaranteed to the majority by the equal protection clause of the Fourteenth Amendment of the United States Constitution.
No conservative, new or old, wrote that. It was written by liberal California Supreme Court Justice Stanley Mosk for a 6-1 majority in the Bakke case, 18 Cal.3d 34, a decision that the Supreme Court should have followed completely but alas did not. As a 2003 article in the San Francisco Chronicle pointed out,
The California Bakke ruling was as notable for who wrote it as for what it said. The author was Justice Stanley Mosk, “the last of the New Deal liberals in California public life,” as Chronicle reporter Bob Egelko wrote when Mosk died two years ago at age 88. Named to the state Supreme Court in 1964 by Gov. Edmund G. (Pat) Brown, Mosk had been a leader in California Democratic politics and won nationwide renown on the court for rulings protecting the environment, consumers and tenants.
He proved that a stalwart liberal — at least one who is true to his professed principles — can oppose racial preferences without apology. “One of the central themes of Stanley’s most important opinions — and I think it can also be seen in his controversial opinion in the Bakke case — is the transcendent importance he attached to simple fairness,” said California appellate Justice Anthony Kline.
Arguably, no jurist in American history has been a stronger champion of civil rights.
Ackerman is agitated that those justices he confusingly calls “neo-conservatives” (by which he means the dangerous and destructive radical right extremists) have abandoned the conservatism that so often led the good old conservatives to vote like liberals. I’m more concerned that today’s liberals have abandoned the liberalism that used to lead liberals to vote like liberals.
ADDENDUM [Feb. 15]
As he promised, President Bush has announced that he is renominating 12 nominees for federal appeals courts who were blocked by Democrats last term, and the Democrats seem determined to continue their obstructionist tactis, as recommended by Professor Ackerman.
Sen. Harry Reid, the new Democratic Senate leader, complained that
We should not divert attention from other pressing issues facing this nation to re-debate the merits of nominees already found too extreme by this chamber.
This odd way of framing his complaint was, at best, disengenuous, inasmuch as the Senate had “found” no such thing. On the contrary, the whole rationale of the Democratic strategy was to prevent the Senate from expressing its opinion, since it was clear to eveyone that most if not all of Bush’s nominees would have been approved by a majority vote.
Now, once again, the Democrats “have vowed to thwart Bush’s nominees, whom they consider too conservative.”
“Too conservative” for whom? For what? If judicial qualifications are to be reduced to how conservative or liberal the nominees are, perhaps we should just drop the charade of qualifications altogether and elect the judges.
The Democrats believe the views of all of these nominees on civil rights are “too conservative.” Let’s see, those would be the same views that the NAACP, all other civil rights activists, and all liberal Democrats themselves proclaimed until they abandoned racial neutrality for racial preferences in the 1970s. Who knew that all those civil rights supporters were so conservative back then….