Bush's "Liberal" Legalisms
althouse at FACSTAFF.WISC.EDU
Mon Nov 13 14:34:34 PST 2000
Brad Clanton writes: "hypocritical for conservatives to ask the courts to
That was hardly the suggestion. The point is the Bush supporters are making
an argument for equal protection rights that is extraordinarily expansive.
Yet Bush has expressed his appreciation for Justices in the Scalia-Thomas
mold and for "strict constructionists."
I certainly think that when people want to use the courts they are entitled
to invoke whatever arguments work for them, but they cannot immunize
themselves from the ability of onlookers to perceive irony and perhaps even
a tinge of hypocrisy.
And if in fact the use of the courts was really for purposes other than
prevailing on legal grounds and to attempt to shape public opinion, one can
hardly complain if one's actions end up shaping opinion in some other way.
>My comments were not directed toward the merits of the arguments in Bush's
>complaint. Instead, they were directed toward an attempt to refute those
>arguments not on the merits, but by invoking the cliché that it is
>hypocritical for conservatives to ask the courts to do anything. I wholly
>concede that the arguments in the complaint have virtually no likelihood
>of success under current Fourteenth Amendment jurisprudence, and certainly
>not under the original understanding of that amendment. I also agree that
>this is a state issue. But so is regulating all sorts of other things
>that have been held to violate the Fourteenth Amendment. To say that it
>is a state issue does not mean there are no limits in the federal
>constitution on the exercise of that power.
>I am confident the Bush complaint is not sanctionable under Rule 11, as
>Prof. Levinson suggests. And it is clear to me, as I'm sure it is clear
>to most people, that no one in the Bush camp really expected the complaint
>to be successful. I have no inside information, but my guess is the
>complaint was likely intended to bring additional scrutiny to bear on the
>whole process and to give the Bush side additional leverage. The Bush
>complaint is, as this whole dispute is, at the intersection of law and
>politics. The complaints by Florida citizens regarding the ballot are of
>the same sort, in my view.
>House Judiciary Committee
>362 Ford House Office Building
>Washington, D.C. 20515
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