P.L.A. - A Journal of Politics, Law and Autism

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Friday, May 16, 2003
Tell His Parents

Atrios informs us that right wing talk show host Michael Savage recently discussed the new report by the California Department of Developmental Services showing a dramatic increase in the incidence of autism. Wampum’s excellent commentary on the report may be found here and here and here.

In particular, Atrios quotes an email from Rick Rollens as follows:
Well, it seems that national talk show host Michael Savage, who describes himself as a "compassionate conservative" and host of the nationally syndicated Michael Savage Show, has taken on the autism community. He stated in a program yesterday that the new California Report was "a way to drum up business" now that the Iraq war is over and that there is no proof that autism is increasing. He also mocked our community by reading a list of some of the symptoms of autism and said "I have that, I have that, I have that" mocking the seriousness of the autistic condition.

Mr. Savage’s radio program is not available in this area. I do not have firsthand knowledge of what he said about autism and autistics. If Mr. Rollens has correctly characterized Michael Savage’s comments then two issues arise. The first issue is whether or not the incidence of autism actually rose dramatically in California and elsewhere. That is an issue I wish to address at some length but I am not yet prepared to do so as I am still in the process of analyzing the new California report, the CDC epidemiological study as well as the JAMA article and other studies. I will address that question in the near future.

The second issue arises from Mr. Savage’s “mocking” of autism and the symptoms of autism. Apparently, Mr. Savage does not think that autism is a serious disability. I do not know which autistic behaviors Mr. Savage chose to mock. I do know that there are autistic behaviors that are serious, should not be mocked and are most likely not shared by Mr. Savage.

After my son fell into an autistic shell, he would spend hours sitting on the floor just staring at his latest obsession. We did not yet know enough about autism to know how tobreak his obsession and gain his attention. For more than two years, I would come home from work each day and greet Bobby with a cheery “dad’s home.” Each day, Bobby would completely ignore me, refuse to even look in my direction and simply continue staring at whatever he was locked into at the moment. To gain Bobby’s attention I had to physically place myself between Bobby and the object on which he was focused. As we gained knowledge and skill, we worked very hard to teach Bobby how to make eye contact and how to attend to people. One day as I came home from work and greeted Bobby, I noticed that he shifted his eyes slightly in my direction. We rejoiced.

Over time, after much more effort, Bobby would turn his head and acknowledge that I was there. Later, he began to come toward me to show me the object of his focus. Today, when I get home, Bobby will see me and smile, pleased with my presence. He will approach me for a hug and a quick spin. He may even pull up his shirt in an effort to get tickled. If I tickle him, he will be sent into spasms of laughter and joy. It took us more than five years to go from a complete disregard of my presence to an interactive game in which he expresses joy in human interaction. What exactly does Mr. Savage find in that behavior that calls out for mocking?

Bobby will be eight years old next month. He is non-verbal. Through many years of speech therapy, applied behavioral analysis and other techniques, my wife and I, Bobby’s teachers and therapists, and Bobby have all worked endless hours to get Bobby to talk. We have been unable break through the autism to attain speech. Last month, Bobby brought me his shoes and my car keys. That is way of asking if we can take a ride in the car. As Bobby and I approached the car, Bobby in tones clear as a very fuzzy bell said, “ride in car.”

My heart leaped. Fighting the urge to run back into the house to tell my wife (which would have provided negative reinforcement for Bobby's success by delaying the reward of a ride), I started saying “good talking Bobby, very good talking Bobby.” When Bobby asks for a ride in car with words, Bobby gets to ride in the car.” With a quick hug I put him in the car for a ride. During the ride I tried to prompt Bobby to say it again. “What is Bobby doing?” Is Bobby riding in the car?” Does Bobby like to ride in the car?” Twice more on the trip, he responded by saying “ride in car.”

After Bobby showed no sign of saying anything further I returned home and rushed into the house to tell Deb the news. As she was lavishing praise and hugs on Bobby for his “good talking,” tears of pride and joy were running down her cheeks and mine.

Our toil is long and difficult, our triumphs rare and Bobby’s progress may seem to others to be marginal. Bobby’s progress is the reward of his hard work and ours. We revel in the successes and try to think of the failures as part of the journey to success. Why does Michael Savage feel the need to mock us?

Autism has been a central part of my life for a number of years. In that time, a number of people have said and done things that were hurtful (to us, Bobby is unconcerned with the opinions of others). The vast majority of those comments, however, were not intended to hurt us. They were made out of fear or ignorance. As we have noted before, the cure for ignorance is knowledge. We try to respond to hurtful comments and actions with information. The information cures the ignorance. The effort to provide information about autism is part of why PLA exists

The only group that seems intent on intentionally making hurtful comments about autism are 9-12 year old boys wishing to be playground bullies. To them, autistic kids are “retards” or worse. It is fairly easy to forgive those kids. They are insensitive as a result of immaturity and insecurity. The way for an adult to deal with a playground-bully is to talk to the child’s parents.

Mr. Savage, if the report above is accurate, has shown the maturity and sensitivity of a 10-year-old playground bully. We should have a talk with his parents. Atrios suggests that “you also contact the folks at MSGOP News (world@MSNBC.com and viewerservices@MSNBC.com) and ask them if a man who openly mocks and scorns the disabled is someone they think should be representing their news channel..“ As usual, Atrios is right.

Tuesday, May 13, 2003
Let’s Hope Al Qaeda Does Not Recruit Autistics

In the run up to the war in Iraq, we learned of the horrors of a so-called dirty bomb. Radioactive material distributed by conventional explosives has the potential to poison large areas and terrorize populations.

Our fear of dirty bombs increased exponentially recently when we learned that that the United States military failed to secure Iraqi nuclear sites in time to prevent substantial looting, possibly including radioactive material that could be used in the making of a dirty bomb.

The Washington Post reports that:
Seven nuclear facilities in Iraq have been damaged or effectively destroyed by the looting that began in the first days of April, when U.S. ground forces thrust into Baghdad, according to U.S. investigators and others with detailed knowledge of their work. The Bush administration fears that technical documents, sensitive equipment and possibly radiation sources have been scattered. If so, there are potentially significant consequences for public health and the spread of materials to build a nuclear or radiological bomb.

In discussing the possibility that nuclear material was taken from Iraqi sites, Kevin of Lean Left writes:
The truly frightening option is number two. If you are religious, go to bed tonight, and every night for the rest of your life, praying that options one or three are what really happened. Because option two is truly terrifying. If the WMDs really did exist, then they have now been scattered to the various black markets that unpleasant men use to arm themselves. If the WMDs did exist, they are now on their way to the highest bidders, and men who bid on nuclear material and biological agents do not buy them to look at. If the WMDs did exist, they are now on their way to the hands of terrorists and rogue states. If the WMDs did exist, they are now, as you read this, almost certainly making their way into the hands of people who would like to see us dead. If the WMDs did exists, then today, right now, we are less secure than they day before the invasion began.

If Iraqi nuclear material is now for sale to terrorists, our best protection from the horror of a dirty bomb is to protect our borders to keep the material out. If a terrorist wanted to spread radioactive material across New York City, for instance, one means of entry could be from Canada.

To get from Canada to the New York, one possible point of entry would be the Whirlpool Rapids Bridge that connects Niagara Falls to Ontario. The Whirlpool Rapids Bridge is a large, heavily traveled route. Pictures of the Bridge may be found here and here (look in upper left hand corner).

After 9/11, the bridge was closed to traffic until May 1, 2002. It has since reopened with enhanced security measures. Those security measures surely would be effective to keep out a terrorist group seeking to bring a dirty bomb into the country, right?

Well, maybe not. Via Blah 3, we located this Toronto Star story:
A mildly autistic seven-year-old from Niagara Falls, Ont., unwittingly tested the beefed-up U.S. border security system over the weekend.

It failed the test.

Mitchel David Hernder didn't intend to cause an international flap when he ran away from his Menzie St. home about 4:15 p.m. Saturday. He was simply disgruntled with his dad's decision to ground him, so he left home with his sister's bicycle.

After reaching the Whirlpool Rapids Bridge, the boy threw the bike down the gorge because a sign on the bridge said "No bicycles allowed," his father Mark Hernder said yesterday.

While neighbours and Niagara Regional Police scoured the Canadian side, he casually walked across the bridge, bypassing at least three types of detection systems for thwarting illegal aliens and potential terrorists.

A passerby found the boy, unharmed, several miles from the bridge.

Let’s hope that the Homeland Security Department is better at catching Al Qaeda terrorists with dirty bombs than it is at stopping seven-year old autistic kids from entering the country.

Monday, May 12, 2003
Judicial Nominations and Republican Plans

Republicans are becoming progressively more angry at what they perceive as Democrats obstruction of President Bush’s judicial nominations. They have developed a number of plans to prevent Democrats from filibustering judical nominations.

One one level, it is difficult to understand the Republican ire. As E.J. Dionne has pointed out, of Bush’s 125 judicial nominations, 101 District Court nominees have been confirmed, 22 Circuit Court nominees have been confirmed and two nominations (Miguel Estrada to the D.C Circuit Court and Pricilla Owen to the Fifth Circuit Court of Appeals) are being filibustered.

The filibusters of the Owen and Estrada nominations enrage Republicans for two reasons. First, the GOP contends that there is something deeply wrong with using the filibuster with regard to judicial nominations. It is unprecedented to filibuster a Circuit Court nominee, they argue. In addition, Republicans argue that since a minority of the Senate is preventing a vote on the nominations and since it is clear that both Owen and Estrada would be confirmed on a straight majority vote, Democrats are subverting democratic principles by using the filibuster to prevent confirmation.

The “unprecedented” charged is ridiculous. While is may be true that no Circuit Court nomination has been filibustered, the GOP apparently forgets that President Johnson’s nomination of Abe Fortas to the Supreme Court was defeated by filibuster. In addition, the reason that a vacancy exists on the D.C. Circuit Court for Mr. Bush to nominate Miguel Estrada is that the GOP controlled Senate refused to act on the Clinton nominations of Elena Kagan and Allen Snyder.

The conservative concern that a filibuster of judicial nominations violates democratic principles of majority rule is also filled with irony. Conservatives are unconcerned that a President who failed to secure either a majority or even a plurality of votes in the 2000 election nominated Estrada and Owen. Secondly, the Senate itself is hardly a paragon of democratic principles considering that the 500,000 people of Wyoming get the same two votes as the 35,000,000 people of California. Third, Republicans were stragely silent on the matter of democratic principles when a single Senator (Jesse Helms of N.C.) stalled all judicial nominees for seats within his state by use of the blue slip procedure. Finally, it is deeply ironic that conservatives are concerned about democratic principles with regard to the appointment of Estrada to the D.C. Circuit when the people of Washington, D.C. have absolutely no representation whatsoever in the United States Senate.

Plan A – Repeated Cloture Votes

The Republicans have developed at least five plans to deal with the filibuster of judicial nominations. Plan A was to bring the Estrada nomination to repeated votes on cloture. The GOP hoped that the repeated cloture votes would cause the Democrats to crumble or that the public would rise up against Democrats for being obstructionist. Republicans have brought cloture votes on both Estrada and Owen to the floor on multiple occasions and the Democrats do not appear to be crumbling. As to a rising tide of public opposition to the filibuster, if such a tide of public opinion existed, the GOP would not be considering Plans B, C, D band E below. I suspect that in terms of public support for Owen and Estrada, Buck and Eric have more than Pricilla and Miguel. Plan A seems to be a failure. On we move to Plan B.

Plan B – Mr. Smith Goes to Washington

Plan B is to force the Democrats to engage in a “real filibuster” of the nominations. See this Robert Novak column:
An alternative to cloture votes is around-the-clock sessions, a technique unseen in the Senate for some 40 years. This goes far beyond last week's token night sessions (until 12:50 a.m. Wednesday night and 11:15 p.m. Thursday night). It would take courage and discipline to pursue this ugly process: cots brought into the Capitol, 3 a.m. quorum calls, sergeants-at-arms sent out to arrest absentee senators. There is no guarantee of success, but this tactic has broken filibusters in bygone years.

The “Mr. Smith Goes to Washington” plan is unlikely to work as it is flawed both strategically and tactically. Strategically, it cedes control over the President’s legislative agenda to the Democrats. Once the round the clock procedure is implemented, all Senate business other than the filibuster comes to a halt. The President’s tax package, for instance, would be held hostage to the Democrats willingness to end the filibuster or the Republican’s acceptance of defeat.

The Democrats do not have the votes to pass a legislative agenda of their own. The only strategy available to them is to oppose the President’s package and hope to defeat portions of it while helping to shape and improve the parts that pass. A 24/7 filibuster allows them to derail the administration’s entire legislative agenda the whole while arguing that other matters can proceed if only the GOP consented.

Tactically, the party supporting the filibuster has all the advantages. As Lawrence Solum has pointed out:
Suppose the Republicans try to break the Estrada filibuster by forcing it to go 24/7. Now imagine that it is 11 p.m. In order to muster a quorum, pretty much the whole Republican caucus has to be there. If they leave, the Democrats can suggest the lack of quorum and go home for the night. If they stay, then the Democrats are home sleeping while the Republicans grow progressively more tired and cranky. The basic point is that the filibustering party has a huge tactical advantage. Here is the analysis of Stan Bach of the Congressional Research Service (Filibusters and Cloture in the Senate):
“… late-night or all-night sessions put as much or more of a burden on the proponents of the question being debated than on its opponents. The Senators participating in the filibuster need only ensure that at least one of their number always is present on the floor to speak. The proponents of the question, however, need to ensure that a majority of the Senate is present or at least available to respond to a quorum call or roll call vote. . . . This works to the advantage of the filibustering Senators, so the burden rests on their opponents to ensure that the constitutional quorum requirement always can be met.

Plan B is unlikely to work. I presume the GOP Senate Leadership has thought this through and no Plan B will be attemtped.

Plan C – Change the Rules in the Middle of the Game

Plan C is to change the Rules of the Senate to prevent filibusters of judicial nominees. The theory behind that plan is that it is somehow particularly wrong to filibuster judicial nominees but perfectly okay to filibuster regular legislation. I think that is exactly backwards. If the Senate passes a tax cut, a spending bill or a regulation and later discovers that the measure was an error, the legislation can be repealed or amended by a simple majority vote.

Once a judicial nominee to an Article III Court has been confirmed, the Constitution requires that he or she remain in that position for life (absent impeachment). Thus, errors on judicial nominations cannot be fixed while normal legislation can be repealed or amended. That fact argues for a higher standard instead of a lower standard for judicial nominees.

There are two flavors of rule change ideas floating about. One is simply to amend the rules to exempt judicial nominations from filibusters. The second is a plan cooked up by Zell Miller and Bill Frist. It would permit filibusters of judicial nominations but would gradually reduce the number of votes needed for cloture of such filibuster.
Under the Frist plan, it would take 60 votes to stop a filibuster on the first try, 57 on the second, 54 on the third, 51 on the fourth and finally, a simple majority of those voting. The entire process would take about 13 days, he said.

The problem with both flavors is that it is more difficult to change the Senate Rules than to defeat a filibuster. Imposing cloture on a filibuster requires 60 votes. Under Senate Rule 22.2:
a measure or motion to amend the Senate rules, in which case the necessary affirmative vote shall be two-thirds of the Senators present and voting...

If the GOP had 60 votes, they could end the filibuster. It seems unlikely that they will have 67 votes to do so indirectly.

Plan D – Recess Appointments

Randy Barnett in NRO proposes that President Bush fill vacant judicial slots with recess appointments. Such appoints do not require Senate confirmation but are effective only for the current term of Congress. Barnett identifies one problem with that plan:
The main problem with a recess strategy is that it makes the GOP's best nominees temporary second-class judges. Not only would this fail to realign the judiciary, but it would deter the most promising judicial candidates from accepting. For this reason, recess appointments, as currently conceived, are not a credible threat. Well, until you add a twist.

The “twist” advocated by Barnett is to use the recess appointments to put “far more ideologically objectionable” judges on the bench who would then serve, through a process of repeated recess appointments, as long as a Republican remained in the White House. He suggests Robert Bork as a recess appointment to the Supreme Court for instance. As Barnett puts it:
President Bush could threaten to line judicial openings with committed conservative and libertarian recess appointees, people who are too old, too young, too smart, too conservative, or too burned by previous failed nominations to ever be considered for ordinary judicial appointments. Unlike practitioners who cannot abandon their practice for a short stint on the bench, professors who can take a few semesters off and judges with no prospects of higher judicial office would be ideal. It would be like a judicial clerkship program for conservative and libertarian law professors that can continue as long as there is a Republican president.

If the Democrats don't think they like "stealth" candidates like Miguel Estrada, just wait until they experience the delights of judges Richard Epstein, Lillian Bevier, Bernard Siegan, Lino Gragia, and dozens more like them on the Courts of Appeals. Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court? For the White House, the point of the exercise would be to propose a list of bright and articulate judges who are far more ideologically objectionable to the Democrats and their activist support groups than the president's current nominees.

Please note Mr. Barnett's attitude towards using the Judiciary for political purposes. It is quite ironic, given the nature of Barnett’s argument, that Republicans are accusing Democrats of trying to politicize the judiciary.

Barnett’s mass recess appointment plan suffers from another objection. Those appointees would serve at the pleasure of the President. The constitutional purpose of lifetime appointments is to insulate federal judges from political pressure. A series of recess appointments would give the appearance (and the reality) that federal judges serve at the pleasure of the party of the President. That perception could well undermine public confidence in the integrity of the Federal Courts. If the President reappointed a judge to the bench after the judge ruled in favor of the administration on an issue (say, for insatnce, whether or not Dick Cheney has to turn over the records of his energy task force) such reappointment could be seen as a quid pro quo for the ruling.

The integrity of the Federal Judiciary is a shared resource. For the GOP to put that resource at risk to score political points with its base or to gain temporary tactical advantage over Democrats is simply irresponsible.

Plan E – The Lawsuit

Plan E is a lawsuit being promoted by Freshmen Republican Senators Lindsey Graham and Saxbe Chambliss. According to the Atlanta Constitution:
Two Senate Republicans are considering filing a lawsuit aimed at putting an end to delaying tactics by Democrats trying to block President Bush's nominations to the federal bench.

Freshman Sens. Saxby Chambliss of Georgia and Lindsey Graham of South Carolina said Wednesday they have their staffs as well as outside experts looking at whether such a suit -- filed, in essence, against the Senate itself -- would be feasible…

The lawsuit would challenge the constitutionality of the filibuster, Chambliss said. Details such as which court would hear the lawsuit would be decided by those reviewing whether it is possible, Chambliss said.

Conservatives complain that liberal Federal Judges ignore the plain language of the Constitution. They complain liberals use the courts to achieve political ends that could not be accomplished through the political process. Republicans say they want to fill the federal judiciary with strict constructionists who will prevent the evil of judicial activism.

Republicans then propose filing a lawsuit seeking to find a judge who is willing to ignore the plain language of the Constitution in order to achieve a political result through the Courts. The hypocrisy of people like Graham and Chambliss knows no bounds.

Article I, Section 5, Clause 2 of the United States Constitution states that “Each House may determine the Rules of its Proceedings.”

The Senate has determined its rules of proceeding by passing the Senate Rules. Senate Rule 22.2 states as follows:
[T]o bring to a close the debate upon any measure, motion, other matter pending before the Senate … the Presiding Officer … shall at once state the motion to the Senate … and direct that the clerk call the roll, and upon the ascertainment that a quorum is present, the Presiding Officer shall, without debate, submit to the Senate by a yea-and-nay vote the question:

"Is it the sense of the Senate that the debate shall be brought to a close?" And if that question shall be decided in the affirmative by three-fifths of the Senators duly chosen and sworn … then said measure, motion, or other matter pending before the Senate … shall be the unfinished business to the exclusion of all other business until disposed of.

To ask a Federal Judge to impose his or her views on what the Rules of the Senate should be when the Constitution allocates that authority to the Senate itself would be the greatest act of judicial activism in the history of the country. If ever a non-justicable purely political question can arise, it arises in the instance of the Senate deciding on its own rules. The establishment of the Rules of the Senate are specifically delegated by the Constitution to the Senate and the Senate alone. The Graham and Chambliss proposal strikes at the very heart of the separation of powers. It is a stupid idea made amusing only by the GOP’s shameless hypocrisy.

Plan F -- The Parliamentary Trick

Hill News reports that Orrin Hatch has a parliamentary trick up his sleeve to prevent the filibuster of judicial nominations:
Under the strategy envisioned by Senate Judiciary Chairman Orrin Hatch (R-Utah), among others, the Republicans would strip any Senate minority — currently the Democrats — of their ability to filibuster presidential nominees.

Under the most likely scenario now under discussion, they would secure a ruling from the chair that Senate Rule XXII does not apply to executive submissions to the Senate — and that includes judicial nominees. Rule XXII provides for unlimited debate on all legislative issues that reach the floor unless three-fifths of the Senate calls a halt.

With such an approach, a favorable ruling from the chair on limiting the scope of Rule XXII could stand after only a simple majority approved it.

In essence, Hatch plans to have a the presiding chair of the Senate simply rule that Senate Rule 22.2 (the filibuster rule) does not apply to judicial nominations because Republicans do not have the votes to defeat the filibuster. By securing a ruling from the chair that filibusters are not permitted to judicial nominees, Hatch can avoid the 2/3 requirement for changing a Senate Rule and enforce the rule with a simple majority.

There are a couple of problems with that proposal. First, it flies in the face of established Senate precedent both in terms of the Fortas filibuster and due to the fact that this very Senate (controlled by Republicans) has already submitted the Estrada nomination to 6 cloture votes. If the filibuster rule does not apply to judicial nominations, why did the current Republican Senate leadership submit those nominations to a cloture vote?

The Hill News also notes another problem:
One drawback of this proposed tactic is that it might destroy whatever is left of the working relationship between Democrats and Republicans. That is why some legislative experts liken the parliamentary tool to a legislative nuclear bomb…. If Republicans were able to force a change by jamming through a procedural ruling, “It would be a nuclear winter in the Senate,” said the aide. “This place would fall apart. It would be dire consequences if that happened, in my opinion.”

Lawrence Solum describes the effects of that “nuclear winter:”
(Suppose) The Senate Majority does indeed change Rule 22 and rides roughshod over a Democratic Minority with enough votes to block cloture. What would happen next? This is very important. The Democrats would still have many weapons in their arsenal. By way of analogy, a Senator whose filibuster attempt was foiled could then turn to a variety of other techniques--the most famous of these was filibuster by amendment. The rules allow an unlimited number of amendments to be offered. Each has to be voted down. So if you are determined enough, you can prepare literally thousands of amendments--achieving the same effect as a proper filibuster. More to the point, the day to day functioning of the Senate requires unanimous consent on a plethora of matters large and small. If the minority called for a vote on each and every such matter, the day-to-day operation of the Senate would be ground to a halt.

If Mr. Bush and Mr. Hatch and Mr. Frist want a train wreck over the appointment of Miguel Estrada and Pricilla Owen, I am sure the Democrats will be happy to comply. It is not the Democratic legislative agenda that will fail. It is the job of the administration and the party in control of the Congress to make the government work for the American people. The American people usually hold the party in power responsible for the functioning of the Government.

Plan G—Nominate Broadly Acceptable Nominees

No Republican of whom I am aware is recommending this option, but perhaps the GOP could simply give up the idea of stacking the Federal Judiciary with right-wing zealots with the intent of turning the Federal Courts into a bastion of judicial activism where Republican policy dreams can be implemented without the bother of the political process.

President Bush could then nominate moderate, conservative Judges who can gain the support of 60 Senators. Democrats have demonstrated that they will confirm such Judges. The law would continue its gradual evolution. It is not a bold plan but it would work. The alleged "crisis" over judicial nominations would pass. The Courts would continue on a rightward trend (a several decades long trend at this point). The Senate could continue to function without suffering a "nuclear winter." The administration's legislative agenda would pass or fail on its own merits. The only problem with the plan is that the GOP would have to forego its efforts to remake the Federal Courts in the image of the Federalist Society. In other words, the Federal Courts could remain impartial arbiters of the law instead of becoming poltical shock troops.

Many of the GOP plans outlined above share the characteristic of being revolutionary. They reek of the same hubris and overreaching as was typical during the salad days of Newt Gingrich.

From a legal perspective, I would hate to see the Republican Party succeed in its efforts to politicize the federal judiciary. The Federal Courts already suffer from the perception that Supreme Court unwisely interjected itself into the 2000 election with political motives. See this Law Review article by Jack Balkin.

The judiciary needs a period of healing in which it can regain its reputation for impartiality and fairness. It does not need a revolutionary "realignment" through increased partisanship. The Federal Courts can regain their prestige and integrity only if the judges appinted to the Courts have broad, mainstream approval. Unfortunately, for the GOP, judges with mainstream approval are not acceptable.

Republican plans to “realign the judiciary” puts the very foundation of the moral authority that the Courts have built up over more than two centuries at risk. The notion that the judiciary should be realigned begs the question of realignment from what to what?

The Federal Judiciary is already conservative. The liberal decisions despised by conservatives such as Bakke, Roe, Brown and Miranda are decades old. Republicans have appointed seven of the nine current members of he Supreme Court.

As Jack Balkin has written:
The claim that Bush v. Gore allows liberals finally to "know what it feels like" is misleading in another respect. The argument seems to assume that until Bush v. Gore the liberals were basically in control, that all of the judicial shenanigans one might have complained about in the 1980s and 1990's were liberal decisions. It makes it sound as if there has been no conservative judicial activism in the recent past, and that conservatives have been repeatedly victimized by an unreleting stream of liberal decisions from the moment that Earl Warren ascended to the bench to December 12, 2000. This is fantasy. Earl Warren has been dead for over thirty years. The Democrats got no Supreme Court appointments from 1967 to 1994. From the retirements of Warren and Fortas to the present day the Supreme Court has become increasingly conservative, and has been in a relatively continuous conservative retrenchment in a whole host of areas, including criminal procedure, the rights of the poor, and race relations. Anyone who has actually been following what the Court has been doing must have noticed that Brennan and Marshall started to write a whole lot of dissents starting in the early 1970's, and they didn't stop. They kept on losing. And losing. And losing. And losing, in a whole host of areas…

But the more important point is that, particularly in the decade since Clarence Thomas was appointed, the conservative Justices have been striking down statute after statute using what, from a liberal perspective, is just made up stuff. Those decisions, particularly in the federalism area, and not Bush v. Gore, are really the sauce for the goose that Juan is talking about; they, and not Bush v. Gore are the demonstration to liberals of what it is like to be on the wrong side of a constitutional revolution. My point is that those sorts of decisions have been coming out of the Supreme Court of the United States for a very very long time. To pretend that they have not is to pretend that conservatives haven't been controlling the courts, and winning most of the battles for quite a few years now.

So Republicans want to realign the federal judiciary from a conservative institution to an ideological bastion in which right wing judicial activists impose their political opinions on the country without the benefit of winning in the political arena. If you think that is a proper role for the Federal Courts, support the GOP plans. I oppose such plans.