Justice Stevens will not be easily replaced

[Raymond Kessler]

Yes, much of this would be old hat.  I would just refer readers to the
research done on the attitudinal model (esp. Segal and Spaeth).
Ray


-----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 4:01 PM
To: 'conlawprof at lists.ucla.edu'
Subject: RE: Justice Stevens will not be easily replaced

	It seems to me that these debates would be more helpful if, instead
of just using the terms "realpolitik" and "real judge," the posts were more
concrete about how judges are supposedly behaving, and supposedly supposed
to behave.  Is the claim, for instance, that a "real judge" is a judge who
focuses on original meaning?  A judge who closely follows precedent?  A
judge who ignores his own personal views about sound policy results?  A
judge who ignores his own personal views about sound judicial methodology?
I'm sure there's a good discussion to be had here, if we defined our terms a
bit more precisely.  (Perhaps even the discussion would be a bit old hat,
but perhaps not, depending on precisely what is said.)

	Eugene

> -----Original Message-----
> From: Raymond Kessler [mailto:rkessler at sulross.edu]
> Sent: Wednesday, April 21, 2010 1:52 PM
> To: 'Miller, Darrell (mille2di)'; Volokh, Eugene;
conlawprof at lists.ucla.edu
> Subject: RE: Justice Stevens will not be easily replaced
> 
> I'm glad to see there are still some idealists out there to counter us
> cynics.  IMHO too many people idolize and fawn over the Justices (or their
> favorite Justice) and refuse to see that the Justices "have no clothes."
> Realpolitik characterizes most of the Court's work.  The only Justice who
> seems to actually care about acting like a real judge is Kennedy.
> 
> Ray Kessler
> Prof. of  Criminal Justice
> Sul Ross State Univ.
> 
> 
> 
> -----Original Message-----
> From: conlawprof-bounces at lists.ucla.edu
> [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Miller, Darrell
> (mille2di)
> Sent: Wednesday, April 21, 2010 12:23 PM
> To: 'Volokh, Eugene'; 'conlawprof at lists.ucla.edu'
> Subject: RE: Justice Stevens will not be easily replaced
> 
> 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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