Ginsburg, Phony Arguments, Phony Refutations

Barksdale, Yvette 7barksda at
Wed Nov 2 12:16:52 PST 2005

I think from the perspective of conservative Republicans - the definition "liberal extremist" has been collapsed to outcomes (not interpretive style, but outcomes)  on  three or four issues  1) abortion, 2) separation of church and state, 3) affirmative action, and I guess now 4)  gay rights. 
Anyone  who supports constitutional protection on all of those issues is considered "liberal extremist"  - even though these positions really reflect pretty standard post- New Deal constitutional interpretive techniques.  
 For example,  standard jurisprudence certainly includes privacy  rights - which are really an outgrowth of Meyers, and ilk - even more so than of Griswold.   Current constitutional protection for parental rights, which I think most conservatives favor, is really based upon the same jurisprudential approach as Roe [ Scalia's attempt to make "19th century tradition" a limiting factor notwithstanding] After all, as we intone to students every semester,  there are constituional  rights which are not specifically textually unenumerated in the text constitution, but which are nevertheless constitutionally protected as an aspect of liberty - which the Constitution secures to all persons.)   This approach mainstream. However, since these parental  rights are not specifically  enumerated - they could also be considered the result of "legislating from the bench" - in the sense  that 1)  the Supreme Court, as it always does whenever it renders any opinon, "makes binding  law" - and 2) that law cannot be unambiguously traced to the text of the constitution. Thus the decision to protect those rights is the  Court's rather than, unamigously, the framers.  
And yet no conservative would say that a judge who reads the Constitution to protect parental rights is an "extremist"  - even thought analytical basis for the decision is really the same.  So, it is really outcomes on these four social issues that is the linchpin.  I think everything else is just a smokescreen. ( I don't think federalism enters into the mix here in the same way - for example, lots of conservatives objected to Boerne because of the Smith issue and wanted to uphold Congressional power.  There are also economic conservative issues - but I don't you get tagged extremist by conservatives because you disagree with them on the takings clause.)  
Ditto I think with  liberal Democrats - the litmust test is these social issues - and the linchpin is outcomes. I think liberal Democrats would include commerce clause issues on this list - because of the social legislation passes under the commerce clause (VAWA for example) . But again, the outcomes are what brands you with either side of this debate  - Democrat or Republican.  Interpretive methodology enters into the mix because the choice of methodology makes it easier or harder to achieve certain outcomes. 
(Of course,  there is a lot to be said for the fact that, despite all of the harumphing, whether anyone, liberal, conservative or whatnot,  thinks  a particular constitutional interpretation is just and therefore legitimate has to depend upon one's views on the justice of these particular  outcomes. After all, no one wants to interpret the constitution to support unjust  results - - improvident may be okay - but not unjust.,  No one wants to live in what they consider to be an illegitimate state.  So, outcomes  necessarily affect perceptions of legitimacy. For example, I think certainly abortion outcomes count in this way for many conservatives, given their views on the sanctity of the life of the unborn, as does affirmative action  for many so-called liberals - given the country's sorry history of slavery, Jim Crow (de jure and de facto), and our  seemingly permanent  societal hangs up about race - e.g., Katrina.) 
Ginsburg, who is four for four in favor of constitutional rights on these social issues,  would certainly count as a liberal to conservative Republicans on that score. in contrast,  Roberts, who seems to be  four for four against constitutional rights on these issue.  would certainly count as a right wing  conservative to liberal Democrats under the same reasoning. (Ginsburg, for example, was a crusader on women's rights, while Roberts seemed to go to great efforts  in the Solicitor's office to knock out pro affirmative action positions, see eg., his role in Metro Broadcasting  and the extraordinarily limited approach he took as in his brief as advocate for Native Hawaiians in the [native Hawaiian only voting rights case - whose name escapes me and which I don't have the energy to look up.]  This suggests that in Grutter/Gratz he would have likely have voted wth Scalia and Thoms  - the only two Justices to take the pure "colorblind" position. (As you may recall, seven justices rejected the pure colorblindness approach in the Michigan cases  , although only five of course, agreed the constitutional criteria for consideration of race were met in Grutter) 
So social conservative Republicans would clearly consider Ginsburg liberal, and socially  liberal Democrats would consider Roberts conservative since these social justice issues are litmus. 
In contrast, mainstream Democrats or Republicans,  I think are less likely to keep score solely on these social justice issues. They  are more likely to look at a range of issues, as well as interpretive approach.  On this score, I think both mainstream Democrats  and mainstream Republicans would consider  Ginsburg a moderate (certainly if you look at the range of issues before the Supreme Court), and Roberts a conservative (although perhaps not a radical one.)  
For example, as to Ginsburg, even her position on the social justice issues reflects pretty standard post-Meyers (ie. 20th century) constitutional jurisprudence, with which I would say probably 75% of the bar agrees (others may have a diffrerent view here - or better yet- statistical studies).  So, I think mainstream Republicans , as well as Democrats, may well count her as  a moderate on this score.  
Of course, it is precisely  this standard 20th century constitutional jurisprudence which the conservatve wing of the Republican wants to overturn. So they would consider her on the other side, and thus extreme. But usually the folks storming the citadel are considered the radicals, not the sentries inside. (For example, in contrast, no one considered Brown era civil rights lawyers  moderates. They were branded Communists because of their assault on the status quo - even though they turned out to be clearly right).    Indeed, conservatives have been quite adept in framing the debate to characterize Justices who are defending long-standing constitutional principles as somehow extreme while one might say - radicals who are storming the citadel, as level headed moderates. Perhaps the "legislating from the bench"  mantra carries the rhetorical heft on this score .  
But mantra aside, Ginsburg's positions, social justice and otherwise,  are squarely in the mainstream of legal opinion. (see e.g., even Bush on affirmative action, and the Miers appointment.) And I think, therefore, mainstream Republicans ad Demcrats would consider her moderate, or perhaps somewhat liberal, but certainly not extreme.  
As to how mainstream Democrats would view  Roberts -  like you, I  don't know enough about  him to know for sure what his positions might be on  the range of issues - he, like Ginsburg,  may be a moderate as well under that standard.  Certainly,  most of his bread and butter appellate opinions were standard  lawyerly exercises in precedent and logic, and on that score, he seemed less ideologically -bent than Scalia who has made a determined assault, for example,  on mainstream  statutory interpretation.    
But, one Roberts note,   in the Hedgepeth (sp?)  (DC subway arrest case) he seemed to reject the idea of any kind of heightened scrutiny, beyond minimal rational basis rview for  liberty interests of any sort - which may well include parental rights etc., -  If so, that view would have to certainly put him on the jurisprudential fringe, whatever the test, wouldn't it? 
However,  since mainstream (not conservative)  Democrats  are pretty much in favor of status quo constitutional interpretation (to the dismay of crits, for example), my  guess, is that they as well would likely view the apparently commited originalist Roberts as conservative (although perhaps not radically conservative). [ Perhaps the originalism explains his Hedgepeth view of liberty interests)
 On the same score, I think conservative Democrats are less troubled by originalism, again because of their views on the  social outcome issues, and thus they may well have consider him a moderate - which  may explain why he picked up a fair number of Democratic votes.  (of course many votes came from deference to Prez picks  - and he may well be to the left of Rehnquist, whom he replaced. O'Connor of course, is another story.) 


From: Richard Dougherty [mailto:doughr at]
Sent: Wed 11/2/2005 12:11 PM
To: Barksdale, Yvette
Cc: doughr at; Trevor Morrison; JMHACLJ at; conlawprof at
Subject: Re: Ginsburg, Phony Arguments, Phony Refutations

I agree on the problem of language.  I have little idea what kind of justice Roberts will be, but I'm guessing far more conservative than he was advertised, and than the hearings revealed.  But if we can't (on these terms) call Roberts a moderate, can we call RBG a moderate?  Do mainstream Democrats consider Roberts (or, more importantly, Alito) a moderate?
Richard Dougherty

"Barksdale, Yvette" wrote:

> Richard Dougherty writes:
> "The fact that editorialists (liberal and conservative) did not call Ginsburg an extremist does not necessarily mean that Republicans didn't think they were getting an extremist."
> One question is - what is meant by Republican and what is meant by extremist. If by Republican, you mean the rightmost  wing of the current Republican party who would like to 1) repeal the New Deal, and  2) roll the constitutional law  back to the late 19th century, then I think that you are right - that group would consider Ginsburg an extremist.
> That crowd viewed Roberts as a moderate - which under similar logic would mean that 1) Nevada is in the Midwest because  it is east of California, 2)  all land mass east of Michigan is basically off the chart.
> But certainly mainstream Republicans did not consider Ginsburg an extremist, did they?
> yb
> ________________________________
> From: conlawprof-bounces at on behalf of Richard Dougherty
> Sent: Wed 11/2/2005 11:17 AM
> To: Trevor Morrison
> Cc: JMHACLJ at; conlawprof at
> Subject: Re: Ginsburg, Phony Arguments, Phony Refutations
> I'm not convinced that the conclusion follows from the evidence cited.  The fact that editorialists (liberal and conservative) did not call Ginsburg an extremist does not necessarily mean that Republicans didn't think they were getting an extremist.  There are lots of reasons why editorials are written, and we would also have to make a judgment ahead of time as to what is a liberal and what a conservative paper.
> For example, the Dallas Morning News is thought by virtually everyone to be a very conservative paper, but in the past week it has come out in opposition to the state proposition defining marriage, and while it supported Miers (for obvious reasons) it has lamented the Alito pick as divisive.  But surely most Republicans support the amendment and support the Alito pick.  Is there any way to know how many conservative (not libertarian) Republicans belong to the ACLU?
> (I'm taking no position here on whether or not Ginsburg is a moderate.)
> Richard Dougherty

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