Justice Stevens will not be easily replaced

Miller, Darrell (mille2di) mille2di at ucmail.uc.edu
Wed Apr 21 10:22:56 PDT 2010


I agree with Professor Volokh on this issue as well.  

I think a more fruitful discussion would be on the question of when does the nominee think the judicial branches should invalidate laws that derive from the political process.  This has the potential to cut through some stale rhetoric.   Some things that are popularly enacted aggravate either the left or the right (i.e. abortion restrictions, gun restrictions, state DOMAs, "death with dignity" laws, etc.).  Is the nominee as likely to uphold (or strike down) abortion restrictions as gun restrictions?  Are federal efforts to limit the use of medical marihuana just as intolerable (or defensible) as federal efforts to mandate health insurance?  




     

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Wednesday, April 21, 2010 12:56 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: Justice Stevens will not be easily replaced

	I don't see how much terms such as "knee-jerk" and "ideologue" really add much to the analysis here.  Justice Stevens did end up being a pretty reliable liberal vote, but I'm sure it was because that's where his legal thinking took him, not because his "knee jerk[ed]."  He's a very smart and thoughtful man, much as I've disagreed with him on many things.

	Likewise, I'm pretty sure that "ideologue posing as a judge" isn't really much of a substantive argument in this context.  All Justices rely in very large measure on standard judicial tools, such as careful attention to precedent, close reading of the text, and the like; so did Justice Stevens.  All Justices also rely in considerable measure on their "ideology," which is to say their views on hotly contested questions (usually, though not always, constitutional questions) on which precedent, text, original meaning, and the various other standard judicial tools have not provided sufficiently definitive answers.  Justice Stevens did this; Justice Scalia does this; every Justice has done this; so will the Justice that President Obama appoints.

	It's certainly interesting to discuss how a potential nominee -- or even a generic Obama nominee's -- appointment might affect constitutional law, and how Justice Stevens' tenure on the Court has affected constitutional law.  But it seems to me that this requires some more careful and detailed analysis, rather than sloganeering.

	Eugene

> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-
> bounces at lists.ucla.edu] ...
> Sent: Wednesday, April 21, 2010 9:39 AM
> To: ...
> Subject: RE: Justice Stevens will not be easily replaced
> 
> Judicial maverick?  Perhaps in his early years, but towards the end he
> became largely a knee-jerk liberal (not as bad as the rest).  It's the
> knee-jerkers on both sides of the political dimension who have made Anthony
> Kennedy one of the most powerful men in the country.  Don't kid yourself,
> Obama is looking for an ideologue posing as a judge.
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