Judging the Judiciary

JUDGING THE JUDICIARY….I happen to think that it was never remotely practical for the activist base of the Democratic Party to think that Samuel Alito’s Supreme Court nomination could be scuttled in the Senate. After all, only one nominee in the past 35 years, Robert Bork, has been rejected for ideological reasons. Rehnquist and Scalia were both confirmed easily, as was Clarence Thomas, despite the explosive testimony of Anita Hill. Both liberal and conservative nominees know perfectly well how to play the testimony game these days, and by the time the process gets to the hearings stage the outcome is all but certain. It’s naive to think that a few days of questioning could change this dynamic if only Senate Dems “grew a spine.”

That said, Reed Hundt has some interesting comments about how that could change over the longer term. Here are two of his points:

First, as to judicial nominees, the blogosphere is so far rather ineffective. It doesn’t seem that easy to translate the record of a Judge Alito into comprehensible bits and bytes that in turn can shape the mainstream media’s reporting. Law professors need to help more.

….Fifth, if the left doesn’t like the way the judiciary is behaving it will have to mount a sustained critique on a broad front, with many details. Legal and popular blogs could do that, but have not yet done so. The right is ahead of the left on this topic, by about 30 years.

Obviously these two points are related, and I think they’re correct. The right has a comprehensive and understandable critique of “activist liberal judges” while the left has nothing comparable (as discussed here and here.) If we lefties want to sway public opinion, we need to explain in a systematic way what’s wrong with the current conservative hegemony over our judicial system. Most liberals can’t do that in any kind of compelling way, which makes it hardly surprising that the public is not up in arms over it.

It’s going to have to be law professors and judges who mostly take the lead on this. Who wants to start?