« Are they bullshit or just lies? | Main | Blogging Ethics »
Friday, October 28, 2005
Can McConnell "Hate" Bush v. Gore?
A while back I asked, "Can Roberts Hate Roe?" That is, should then-nominee Roberts be obliged publicly to state his fealty to the decision in Roe v. Wade, or effectively disqualified if he openly admitted what pretty well every legal academic, at least, acknowledges -- that Roe is a poor piece of legal work? Should pro-choice Democrats demand not only that he would preserve the conclusion that there is a constitutional right to abortion, but that he praise, or at least not criticize, an opinion that any candid person would admit is more than open to criticism?
As we think anew about potential replacement nominees for Justice O'Connor's seat, we might ask the same question -- this time, of the right. So, the question for today is, "Can McConnell 'hate' -- or at least criticize -- Bush v. Gore?" Again, here's an opinion widely derided as unprincipled and incoherent. Even discounting some of the fervor of the criticism, and allowing for the hasty and pressured circumstances in which it was decided, as I think we must, it is widely viewed as poor judicial work. Even most of its defenders are tepid, at best, in its defense. And Michael McConnell openly criticized the opinion at the time.
I think the answer is yes -- but I note that at least one conservative writer says otherwise, writing of McConnell that his criticism of that case shows that "he’s a solid conservative scholar, but he isn’t partisan enough. He’s argued that Bush v. Gore was a bad decision. That alone should disqualify him; the next time a case like that comes up, we need to be sure of a 5-4 majority." I admit I don't know if this is a parody or not. If so, good one. (The same writer argues that Maureen Mahoney likewise should be disqualifed because she argued the University of Michigan cases.)
Posted by Paul Horwitz on October 28, 2005 at 11:39 AM in Law and Politics | Permalink
TrackBack
TrackBack URL for this entry:
http://www.typepad.com/services/trackback/6a00d8341c6a7953ef00d83459870e69e2
Listed below are links to weblogs that reference Can McConnell "Hate" Bush v. Gore?:
» Opposing Alito from A Frolic of Her Own
While the right-wing's ideological criticism of Harriet Miers may have been crude, it was at least straightforward. The same goes for at least one conservative blog's take on Michael McConnell as not partisan enough for his criticism of Bush v. [Read More]
Tracked on Oct 31, 2005 6:47:38 PM
Comments
Jurisprudentially, I think McConnel can safely denounce Bush v. Gore because B v. G. itself says it lacks precentential value. Politically I suspect it's pretty safe as well. Bringing up B. v. G. only helps Democrats.
Posted by: Adil | Oct 28, 2005 3:27:51 PM
But it probably means Bush isn't interested in nominating him. I think this counts against nominating him, because I happen to think it was rightly decided. Of course I'm not the plaintiff who won the case, so I'm going to place a little less value on it than Bush would.
Posted by: Jeremy Pierce | Oct 29, 2005 9:14:52 PM
Even Justice Scalia has signally failed to defend Bush on the merits; he recently offered this much at Harvard Law School:
Really, there were two pressures in Bush v. Gore which are not present in most cases. The first was a time pressure. It is very unusual that we have to whip out an opinion in, uh...I remember that the briefs in the case were delivered on Sunday and the argument was on Monday! We had to come out with a decision very quickly, so law professors [like Dershowitz] who study the issue for three months and then write a law review article - big deal. (laughter) The second pressure in that case, of a sort that doesn't exist in most cases, because of its political sensitivity, as in Brown v. Board of Education, there was some pressure to try to come up with a consensus position, to try to get a strong court rather than a 5-4 opinion. Those are the only two differences from the ordinary case. Certainly no -- I don't think on the part of anybody on the cout -- political considerations.There was a recent Vanity Fair piece which suggested that Scalia thought that Kennedy's per curiam was, "[l]ike we used to say in Brooklyn...a piece of shit." Scalia denies it, but I don't think he's far from the mark if he did say it, and if he didn't, he should have. Rehnquist's concurrence strikes as being at least plausible, but at the end of the day, Scalia, Thomas and Rehnquist all joined the per curiam.
I guess the point I'm making is that I don't think it's unreasonable to disdain Bush, and there's a pretty good chance that at least one of the Bush majority quietly agrees.
Posted by: Simon | Oct 31, 2005 1:40:11 PM
The comments to this entry are closed.