The Lonely Centrist

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Thursday, July 28, 2005

Here's a stupid column by Sidney Zion of the News York Daily News. Zion, whom the Daily News identifies as an old (John F.) Kennedy Democrat, claims that what we need to know about John Roberts is how he feels about Bush v. Gore. The column drips with typical left-wing cynicism about that decision. Of course, Bush v. Gore is not pretty, and is certainly open to attack. But for Democrats to continually call it a travesty, while overlooking the decision of the Florida Supreme Court that threatened to give the election to Gore, is pure hypocrisy. After all, to put the worst face on it, the Supreme Court had a nasty choice - look for a basis to overrule the Florida court, or allow the Florida Court to steal the election for Al Gore.

But let us not put the worst face on it. Let us actually try to consider the Court's arguments in good faith. No, what we see from Zion is what we so often see in debate nowadays: Zion doesn't even make an attempt to understand Bush v. Gore on its own terms, or to deal seriously and in good faith with the arguments made by the Court majority. For Zion, if Roberts says he supports Bush v. Gore, that is ipso facto proof that Roberts would "legislate from the bench." (For a succinct if controversial defense of Bush v. Gore, see Harvey Mansfield, quoted in the Jan. 5, 2001 . A subscription is required, so here is the quote:

"This decision saved the country from possible turmoil and a good deal of further partisan confusion. In this election, there seemed to be more partisanship after people voted than before. I heard hardly anyone agreeing with the thesis of the person he didn't vote for in the matter of the Supreme Court. So I voted for Bush, and I very much supported the final decision made by the U.S. Supreme Court. It very correctly overruled the Florida Supreme Court, which had gone much too far in the direction of judicial activism. And it took an activist majority in the U.S. Supreme Court to correct an even more activist one in the Florida Supreme Court."I don't think it was a violation of principle by the U.S. Supreme Court. It's true they mainly support states' rights, but I don't think that's a principle that people can hold to on every occasion. I think they would have made a grave mistake and looked quite foolish if they had held to the right of the Florida Supreme Court to abuse its discretion in this matter. It would have been better if Florida had been able to decide its own affairs constitutionally, but states' rights are not an absolute -- we live under a constitution that also has a federal government. It's good for Republicans and conservatives to remember this. But it's not inconsistent or malicious of them to resort to the final constitutional power of the U.S. Supreme Court."It was unfortunate that the majority of the court had to go to the equal-protection clause, which hasn't been applied in voting cases before this and has potential for future mischief if it comes to be supposed that equal protection requires each vote to have the same power. That would run counter to our federal system. But I think the five conservative justices agreed to using the equal-protection clause in order to get two more votes, from Breyer and Souter, and that was a reasonable and statesmanlike thing to do in the circumstances."The two parties were very much themselves throughout. The Republicans stand for the rule of law, and the Democrats for the rule of the people. And the Democrats, because they stand for the rule of the people, believe that rule should be paramount, and that technicalities are subordinate to that will. Whereas the Republicans believe in doing things properly or legally. It really was a contest of principle between two parties.")

Anyway, if you really want to know what you need to know, how biased this article is - and it is worth noting, because I could see the left picking up this line - just catch this bit: Zion describes University of Chicago Law Professor Cass Sunstein, a very partisan Democrat, as, "a supporter of the Rehnquist court." Thus, Sunstein's searing verdict on the decision - "an embarrassment" - is given extra force. But here is how Sunstein actually described the Court in Senate testimony: "It is fair to say that it has a heavy right wing, a heavy center, but no left at all.... the Supreme Court has moderates but no liberals." He goes on to describe Ruth Bader Ginsburg, for example, as "represent[ing] centrist thinking." Sunstein actually testified that, "it is hard to think of any non-centrist appointment by President Clinton within his eight years in the White House." He concluded that, "Justices Scalia and Thomas have been distinguished members of the Court, and their voices deserve to be heard. But a federal judiciary that follows their lead would make unacceptable inroads on democratic self- government. The Senate should not permit this to happen. "

I think it fair to say that anyone who would describe this Supreme Court in such terms is probably pretty far out on the left.

So either Zion is either ignorant of Sunstein - unlikely, since he knows of Sunstein's quotes - or mendacious.

Democrats can't figure out why they are losing the center. Many of us would be in play if they would offer a credible alternative, based on serious presentation of facts.

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