Deja Vu All Over Again?

This all seems familiar. The Senate Judiciary Committee is preparing to hold hearings on a prospective Supreme Court justice nominated by a conservative, tax-cutting president with sagging approval ratings who is derided as unintelligent by his critics. The nominee, a judge on the U.S. Court of Appeals for the D.C. Circuit, has impeccable credentials and an impressive intellect, but nonetheless is opposed by various liberal interest groups warning he could turn back the clock on civil liberties and equal protection.

Like the politics, aspects of today's music scene have a distinctive 1980s feel. There has been a marked resurgence in 1980s-style alternative pop music in bands like The Killers, The Bravery, Franz Ferdinand, The Stills, VHS or Beta, Razorlight, and Kasabian, among others. These bands were heavily influenced by 80s acts like The Cure, New Order, Echo & the Bunnymen, and the Smiths. There was even a massive transcontinental benefit concert featuring classic band reunions and Duran Duran is on tour. How much more '80s can you get?

Of course, the parallel is less-than perfect. Among (many) other things, Republicans control the Senate, the Cold War is over, no one buys Michael Jackson albums anymore, and I think we're safe from thin leather ties and ozone-depleting hairstyles. I also expect Judge Roberts will be confirmed, perhaps proving that history never really repeats itself.

Related Posts (on one page):

  1. Roberts = Bork?
  2. Deja Vu All Over Again?
K1avg (mail) (www):
I have to ask - was there any particular point to this post?
8.29.2005 11:20pm
Ian D-B (mail):
So does that make the Democratic congress tragedy and the Republican farce?
8.29.2005 11:25pm
Scott Scheule (mail) (www):
My understanding, though, was that the Bork nomination was far more controversial. Does the criticism of Roberts even come close to matching that?
8.29.2005 11:28pm
arbitraryaardvark (mail) (www):
one difference is roberts is probably more moderate than whoever would be next up if he weren't confirmed.
8.29.2005 11:28pm
Of course, the parallel is less-than perfect. [...] I think we're safe from [...] ozone-depleting hairstyles.

Another key difference is that conservatives make jokes about CFCs, instead of denying that they're an environmental problem.

One of my proudest Model UN moments was sneaking cheerleader abatement policy language into a resolution on the environment (which passed), due to their inability to control their hairspray use.
8.29.2005 11:42pm
David Rose (mail):
No one buys Michael Jackson albums anymore? According to a now-missing AP item featured on the NY Times web page earlier today, he is extremely popular in "the Gulf," although I am uncertain as to whether the two berobed dignitaries with whom he is depicted actually purchase recorded music.
8.30.2005 12:02am
countertop (mail):
Hey, if I could find my thin leather ties (or better yet, the tie with a keyboard on it) I would wear it proudly.
8.30.2005 12:02am
TheWinfieldEffect (mail):
Some conservatives are calling for intense questioning of John Roberts -- from the right -- to prevent the confirmation of another Souter. I think this is mistaken, and herein attempt to sketch the proper boundaries of questioning by Senators from the right.

First, Souter. Conservative commentators seem to forget that David Souter replaced Justice Brennan. While Souter may often vote with "the liberals" on the Court, he most certainly votes with "the conservatives" (or crafts a centrist compromise position) more often than Brennan would and did. Empirically, Souter is nowhere near as "liberal" as William Brennan, or Thurgood Marshall, or William O. Douglas, or Harry A. Blackmun. He may be a disappointment to many because he is not a stalwart conservative in the mold of Thomas, but he is a triumphant success in contrast to "aspirational principles" Brennan: a solidly pragmatic jurist who often roots his majority opinions in original understanding and an eye to the structural and procedural guarantees of the Constitution. No one can deny that the court has shifted farther to the right with the foppish monocled dandy-adventurer Souter on-board than it would have with eye-patch Brennan surreptitiously circulating belaying pins to his brother mutineers so they might come dusk commandeer the steering wheel and lazily drift toward the siren call of the liberal Shangri-La.

Second, the standard. The same empirical standard that rehabilitates the Souter "debacle" should apply to John Roberts. Ideologically, it should suffice that Roberts is farther right than O'Connor and a crisper drafter of decisions. Not indecision preserved in amber. That said, (and perhaps this is controversial) questioning by Republican Senators should not exceed the proper boundaries of exposing that Roberts is to the right of O'Connor and explaining to the public that he is a better writer. By this standard, some of Arlen Specter's questions would be improper (and should be decried as improper by other Republicans, especially since Chairman Specter publicly swore to uphold and signed in good faith an agreement to treat fairly Republican judicial nominees). Senator Specter should not question Roberts in detail on Lopez and Morrison. Rather he should simply ask Roberts whether he agrees with O'Connor's dissent in Morrison, and whether he agrees with O'Connor's understanding of the Tenth Amendent and "commandering" in Lopez. If not, why not. How do his views differ? The scorched earth inquisition that Specter suggests he will render upon John Roberts, questioning his beliefs on proper respect and detente between Congress and the Supreme Court (i.e., extorting from Roberts a promise that he will grant broader legislative powers to Congress if he is confirmed), is wholly improper. Not to mention, because Specter seeks to gain from such an expansion of Congress' power, that Specter would be engaged in shameless rent-seeking all the more shameful for its (probable) uncritical sensationalization by the press corps.

I would also note that history might not repeat itself precisely because John Roberts is Robert Bork's antithesis. Too bad Bork's last name wasn't "Johns".
8.30.2005 12:09am
CrazyTrain (mail):
derided as unintelligent by his critics

JNV: like his namesake is a liar. I have not seen any serious critics of Judge Roberts deride him as "unintelligent." [Expletive Deleted by Moderator.]

8.30.2005 12:25am
Um, Crazytrain: read it again. Roberts was not the referent. If you're going to be rude, at least you could make sure you're attacking something that could at least plausably be a correct reading.
8.30.2005 12:37am
Thanks for suggesting some great new bands for my listening pleasure - some were new to me.
8.30.2005 12:51am
Jim Rhoads (mail):
The one who is crazed has again made a fool of himself. At least this post was mercifully short.

I think these hearings will, for the most part, provide entertaining and erudite answers to even the foolish and foolhardy questions certain to come. I wouldn't miss them for the world.
8.30.2005 1:48am
marc (mail):
The popularity of 20ish year old musical styles is well known. One theory is that we are imprinted in our early teens and twenty years later harken back to that time. Then, with our own (instead of our parents') disposable income we buy recordings. Another theory is that there is a mid-life rebellion against that awful stuff kids listen to these days. Whatever the reasons, recall if you can the ads in the 70s for Sha Na Na, for Creedence &c. in the 80s, for disco in the 90s and yes for techno in the...well, whatever you call this decade. This is a great simplification and there are many trends that defy logic and clean description (a la MJ or the actually good aging rockers) but the 'hey-back-in-my-day-didn't-we-listen-to' trend seems to be constant.
8.30.2005 2:26am
Shelby (mail):
Of course, the parallel is less-than perfect.
Plus, "Roberts" makes a really clumsy verb.
8.30.2005 3:03am
Also, Judge Roberts had nothing to do with firing Archibald Cox during the Watergate investgation, unlike a certain Bork I know...
8.30.2005 9:24am
Daniel Chapman (mail):
"Echo and the Bunnymen?"

Good post, Winfield. I agree that republican senators urging a line of questioning that basically amounts to an affirmation of loyalty are misguided.
8.30.2005 10:10am
Gary McGath (www):
The joke "deja vu all over again" is so stale it should have retired along with Yogi Berra.
8.30.2005 10:22am
Craig Oren (mail):
of course there is no parallel between Bork and Roberts. Bork had a paper trail that suggested to many that his views were unacceptable. Roberts does not. Roberts also seems to have a much more cautious demeanor.
8.30.2005 10:35am
bill-10k (mail) (www):
You forgot to add ...

Long ago, in the age of the Bork, the Democrats could issue forth with the lies and the leftist-MSM would parrot the lies until they become the truth. Someone told the Democrats their parrot has died, that's why they look so depressed and can't mount an attack. NARAL tried, even Dan Rather didn't answer the call.
8.30.2005 10:39am
One of the above posts contains an error (the one by the TheWinfieldEffect). Justice O'Connor did NOT dissent in Morrison, the case that struck down a law (a provision of the Violence Against Women Act) as beyond Congress's powers under the Commerce Clause and the Fourteenth Amendment.

She joined the majority opinion in full. So Specter could NOT ask Roberts whether he agrees with O'Connor's dissent, since there was no dissent by her to agree with.

That Justice O'Connor joined the Morrison opinion, despite her likely sympathy with the law's underlying goals, shows that the decision was compelled by the plain language of the Commerce Clause, not antipathy to women, or, as Senator Specter suggests, a lack of deference to Congressional fact-finding.

On another note, I'm baffled that TheWinfieldEffect argues that Souter is a non-liberal, "solidly pragmatic jurist" just because he isn't quite as liberal as Brennan was.

That's like saying that Kruschev is a capitalist because he wasn't as communist as Stalin.

Souter has pushed the Court's jurisprudent to the left, beyond where it was when Brennan left the court.

He has voted to restrict campaign speech that Brennan believed was protected speech.

He has voted to overturn a mid-1970's voting rights precedent limiting the reach of federal regulations over municipal election systems that even many liberal justices joined in.

He voted to overturn the death penalty for 16-year-old and mentally-retarded murderers, something Brennan would have approved of, but never managed to do.

He voted to prevent states from limiting late-term partial birth abortions.

Souter is not a pragmatist, a centrist, or a conservative. He is a judicial activist who rewrites the Constitution to achieve the latest liberal fad.

And Souter sneers at lawyers who try to get the Court to apply the constitution as written, evincing disdain at oral argument for ideas he deems passe, such as following the framers' original intent or limiting Congress's powers to those given to it by the text of the Constitution.

Finally, I'm puzzled that TheWinfieldEffect believes that the Lopez case had to do with the Tenth Amendment and commandeering. It was a commerce-clause case, not a states' rights case.

It was New York v. United States (1991) which involved the Tenth Amendment and commandeering, not United States v. Lopez (1995). Justice O'Connor wrote the opinion in New York v. United States, not United States v. Lopez, and it was New York v. United States which was the case in which Justice O'Connor developed the idea of commandeering to which TheWinfieldEffect refers.
8.30.2005 11:00am
Jay Welch (mail):
Actually, the Republicans did control the Senate for most of the 80's.
8.30.2005 11:35am
SeanT (www):
He voted to overturn the death penalty for 16-year-old and mentally-retarded murderers, something Brennan would have approved of, but never managed to do.

Though there was that time when Brennan did get the death penalty abolished altogether, something that I'm not certain that Souter would vote for.

He voted to prevent states from limiting late-term partial birth abortions.

So did O'Connor, but I don't think she's as liberal as Brennan. And Brennan voted to force taxpayers to fund abortions under medicaid, again, I'm not sure Souter would go that far (or how Souter would react to a more limited pba ban than that found in stenberg).

But I can't see Brennan ever joining some of the decisions that Souter did, esp. in the criminal context, eg Whren, Lago Vista, etc. Quite honestly, I don't think that Souter is that much more liberal than Potter Stewart, which isn't great by conservative standards, but is substantially better than Brennan.
8.30.2005 11:42am
Hans Bader (mail):
I agree that Justice Souter is not as liberal as Justice Brennan, but he is a fairly reliable liberal vote.

Comparing him to moderate justices like Potter Stewart is a stretch.

For example, Stewart thought the Constitution forbade racial preferences in government contracts and college admissions, and that the plain language of Title VI -- which prohibits racial discrimination in federally-funded programs -- forbade any consideration of race in the college-admissions process. He disagreed with Justice Powell's opinion in the Bakke case that colleges could give some consideration to race as a factor in admissions.

In his dissent in the Gratz case, Souter advocated not only racial preferences in general, but crudely-numerical racial preferences (a quota in all but name) that obviously violated Justice Powell's opinion in Bakke.
8.30.2005 12:01pm
SeanT (www):
True, but Stewart also joined the majority in one of my all-time least favorite Supreme Court decisions, Amalgamated Food Employees v. Logan Valley Plaza, and tried to sustain that decision in Lloyd Corp. v. Tanner. Remember, while Stewart was a moderate, he was a moderate on a Court that included Brennan, Marshall, Douglas, etc. I think today he'd probably be pretty much analogous to Souter.
8.30.2005 12:32pm
I believe that inkblots are still fairly common today...
8.30.2005 12:43pm
Peter Friedman (mail) (www):
Roberts, of course, isn't on record with a view as far far out of the mainstream as was Bork, who had opposed the 1964 Civil Rights Act as unconstitutional.
8.30.2005 2:06pm
Dustin (mail) (www):
I'm just waiting for shoulder pads and gelled hair to come back - there is nothing in the world like a New Wave girl...
8.30.2005 3:06pm
Gordon (mail):
With posts like this, we're not long until we get "That 80's Show."

And in 10 years one of its young stars will cohabit with an aging Jennifer Aniston.
8.30.2005 5:45pm
TheWinfieldEffect (mail):
To reply to Structuralist (Or more accurately, poststructuralist):

"It was a commerce-clause case, not a states' rights case."

Only if one (unreasonably) believes that the dormant commerce clause does not impact States' rights. It's a rather easy argument to make that the more narrowly we read the commerce clause, the smaller the scope of the dormant commerce clause and the greater the amount of legislative power reserved to the States. Thus, O'Connor's belief that the Tenth Amendment is not a dead-letter (which is pertinent to all the cases you cite) is most certainly relevant at such a high level of generality (which is certainly the level of generality at which Specter wrote his letter — if you don't like it, blame Specter, which was part of... my... point). I think the problem here is that I was responding to the high level of generality at which Specter makes his argument, not offering a narrow analysis of each case and its distinguishing characteristics, which, frankly, is irrelevant.

"Justice O'Connor did NOT dissent in Morrison, the case that struck down a law (a provision of the Violence Against Women Act) as beyond Congress's powers under the Commerce Clause and the Fourteenth Amendment."

Well, it's safe to say after reading Gonzalez v. Raich that O'Connor would have dissented had the challenge been "as applied" instead of "on its face". I was not speaking historically in a frozen-time backwards-looking fashion, but from the p.o.v. of someone who has both read Morrison and Raich and synthesized O'Connor's statements from both sources. My sentence could have been more articulately drafted for those unfamiliar with Raich, but I reckoned that since Randy Barnett often posts here, anyone reading the post would give me the benefit of the doubt. But again, the scope of the commerce clause goes some distance to determine the amount of legislative power that is reserved to the states by the Tenth Amendment. When Congress goes too far (or when Congress intrudes on traditionally state legislative powers by broadly contruing "commerce"), it "commandeers" state legislatures or state executive officials (neither legislatures nor state officials are "instrumentalities" or "channels" of "commerce", etc.) That "commandeering" is broadly construed — it could be forcing state officials to enforce a federal law or constraining legislative budgetary choice (which is terribly broad, if you think about it) — and, obviously, the greater the quantum of policy-making power you think has been traditionally reserved to the state legislatures, the easier it is for Congress to encroach. (In fact, this is precisely Specter's point: "Hey, you're taking Congressional power and giving it to state legislatures!")

I'm not sure why you think these cases are separate and distinct events, rather than instantiations of a larger conceptual philosophy guiding the more conservative Justices on the Court. One need only glance at Seminole Tribe or Alden v. Maine to see that a guiding conservative philosophy is extant.

The point re: Souter is that he agrees with this conceptual movement and accepts its terms more often than Brennan would and did (who almost always looked to "aspirational principles"), and even if he disagrees, Souter grounds his opinions in precedent and the text and the history of the Constitution and often seeks to make politically savvy comrpomises between interests. The fact that his pragmatism angers you only implies that you're one of those hard-right zealots who is angry that Souter is no Thomas or Scalia. The entire point of my post, as everyone else who read it ostensibly understood, was that Souter is more conservative than Brennan is or was, and sum-total, the Court has moved farther to the right than it would have otherwise (with a Brennan-clone there), despite the fact that Souter votes with the liberals quite often. My argument is more analagous to this one: "The United States is not a perfect country, but it is better than most other nations in the world." To simplify for the mind-numbingly narrow-minded: "Souter ain't so bad. It could quite easily be much worse."

And returning to the ultimate issue, which all your dancing around the heads of pins managed to avoid dealing with: Roberts shouldn't be questioned except to expose how and why he differs with O'Connor and to explain that he is a clearer writer. Therefore, it would be improper for Arlen Specter to ask anything else of the nominee.

I would also note that at least one of your statements is pure gibberish: "[Souter] is a judicial activist who rewrites the Constitution to achieve the latest liberal fad." Preserving the essential core of Roe v. Wade — despite what I personally think of Roe — perfectly matches what the public opinion polls say the people want. What the people want is not "the latest liberal fad." It's the heart of d-e-m-o-c-r-a-c-y.

(Thought I'd spell it out for you.)

For someone who calls himself a conservative, Structuralist, you seem to have an inherent dislike of popular sovereignty. Ah, the sweet smell of hypocrisy in the evening!
8.30.2005 10:23pm
TheWinfieldEffect (mail):
It was New York v. United States (1991) which involved the Tenth Amendment and commandeering, not United States v. Lopez (1995).

I would also note, Structuralist, that given the way precedent works, cases decided in 1991 impact the decision-making process of Justices deciding substantively- or conceptually-related cases before the Court in 1995.
8.30.2005 11:03pm
TheWinfieldEffect (mail):

So Specter could NOT ask Roberts whether he agrees with O'Connor's dissent, since there was no dissent by her to agree with.

Just to make clear, Specter could quite easily ask Roberts: "Justice O'Connor in Gonzalez v. Raich implied that her vote in Morrison may have been wrong. Do you agree with O'Connor's recent assessment of her vote in Morrison? Why or why not?"
8.30.2005 11:08pm