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Saturday, May 08, 2010

Opacity again

Since the opportunity came around, I thought to give Paul a chance to make me feel better.  This Linda Greenhouse "opinionator" has got it all: the ineffable parsings of the President's every word -- searching for that oracular, hidden bon mot, now or in speeches past, that will unlock his inner mind; the honorific epithet "constitutional law professor" (swift-footed Achilles never had it so good); and best of all, the sort of willfully unnatural interpretation of the President's remarks that can only occur when one wants desperately wishes to hear what was not actually said (we need Greenhouse's constructions, she says, because of the dangers that his "densely packed" "200-word soliloquy" might be "misinterpret[ed]").

Here's what the President said (just taking it right from Greenhouse's column).  In response to a question about whether he wanted to nominate someone to the Court who would "push back against 'conservative judicial activism,'" the President said, "It used to be that the notion of an activist judge was somebody who ignored the will of Congress, ignored democratic processes, and tried to impose judicial solutions on problems instead of letting the process work itself through politically.  And in the '60s and '70s the feeling was, is, that the liberals were guilty of that kind of approach.  What you're now seeing, I think, is a conservative jurisprudence that oftentimes makes the same error . . . . The concept of judicial restraint cuts both ways . . . . [T]he core understanding of judicial restraint is that, generally speaking, we should presume that the democratic processes and laws that are produced by the House and the Senate and the state legislatures, etc., that the administrative process that goes with it, is afforded some deference as long as core constitutional values are observed."

There you have it.  Whether one agrees with these sentiments or not is irrelevant.  What the President offered here was a perfectly comphrensible, crystal-clear Thayerism.  A kind of hold-your-nose-and-go-with-the-political-process-unless-you-really-have-to-gag-ism.  Whether he actually subscribes to this view or not, it doesn't take an interpretive contortionist to understand that that's what he said here.

Apparently, though,contortions are what is needed.  Because that can't really be what he said.  Or if it is, he just must have meant something else.

What he meant, says Greenhouse, is the opposite of Thayerism.  He actually meant that "there was a proper time to put judicial activism to work in the cause of dismantling barriers and fixing democracy's deficits."  But that time has passed, and the current judicial activism -- which clothes itself falsely in judicial restraint by invoking originalism -- is the bad kind, the kind that works "toward the restoration of an outdated constitutional vision."  The conclusion of the piece is essentially that the Warren Court did exactly the right thing and that "he doesn't think that all judicial activism is the same."

But why not take the President at his word?  Why not accept that he actually might think that Thayerism ought to be what he should be looking for in his next nominee?  Greenhouse tries as hard as she can to cobble together support for her interpretation of the President's views from a speech he gave a decade ago while a state senator.  But actually (just looking at the portion that Greenhouse quotes) the speech supports the view that the President is a Thayerian at heart.  A decade ago, the President noted that it was regrettable (a"traged[y]") that the civil rights movement "became so court-focused."  A president who wants to limit, or at least de-emphasize, the role of courts in stimulating social change is one who ought to be highly sympathetic to a principled, across-the-board Thayerism -- not Greenhouse's unprincipled variety.

At all events, the decade-old speech is...a decade old.  There was nothing ambiguous in the President's comments, nothing that needed Greenhouse's contortive touch up.  Unless, of course, what is left unsaid is more important than what is actually said.

Given my own feelings about the virtues of opacity, maybe that's what she had in mind.    

Posted by Marc DeGirolami on May 8, 2010 at 06:25 PM | Permalink


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Patrick, did not mean to be obscure. Sometimes it's called "Thayerian restraint" -- that might pick up more hits. The reference is to James Bradley Thayer and (though it can be found elsewhere) to this essay in particular:


Posted by: Marc DeGirolami | May 8, 2010 8:28:18 PM

Is "Thayerism" a standard term? When I googled it, the first hit was a four-year-old Cass Sunstein article and the second hit was this post.

Posted by: Patrick | May 8, 2010 8:12:44 PM

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