Jeffrey Rosen writes a long article in today’s New York Times magazine, which starts off by lambasting Justice Clarence Thomas and then paints a picture of Republican efforts over the years to create Supreme Courts that will give unfettered reign to the rule of corporations. This lengthy and tedious essay goes on interminably about the Constitution in Exile movement and a supposed network of jurists standing by to take us back to its “glory days”.
David Bernstein at the Volokh Conspiracy notes several issues with Rosen’s scholarship, however:
Jeff Rosen is a learned guy who has written some rather perceptive things about the so-called Lochner era in his law review scholarhip. See 66 Geo. Wash. L. Rev. 1241. Unfortunately, in his journalistic piece in the Times magazine, he simply regurgitates Progressive myths when recounting constitutional history.
You can read all of Bernstein’s rebuttals on one page here.
This piece didn’t just appear by accident in the NYT. This article coordinates with a campaign under way by the Democrats to paint GOP judicial nominees as dangerously extremist and out of the mainstream. As the GOP drags its feet on resolving the confirmation filibusters, we can expect more of this kind of historical revisionism trumpeted full blast by the Exempt Media. Its aim will be to undermine the centrists in the Republican caucus and split them off in sufficient numbers to uphold the extortion of the minority that has been the status quo for over two years. (Volokh link via Instapundit)
UPDATE: While we’re poaching from Instapundit, this comment by Richard Relph at Tom G Palmer’s site makes Rosen’s sleazy analysis plainly clear:
I see where the country gets its “cult of personality” from. According to the NYT, the “Constitution in Exile” is about the radical views of a few individuals with guilt-by-association financial backing. One need not bother to read, much less understand, the Constitution itself. The actual ideas of Article I, Section 8 and Amendments 9 and 10 are no where near as important or interesting as which potential nominees are suspected sympathizers. Sad. Truly sad.
Democrat Franklin D. Roosevelt politicized the courts
Professor Bainbridge seems to be saying that it’s appropriate for Republicans to have an opinion regarding how judges should be ruling. I agree, because I certainly have my opinions. One of the cornerstones of a free country is the
Constitution in Exile
I view this just as NYT being worried about the possibility that Bush will nominate Thomas to become CJ when Rehnquist retires.
The Law that Came In from the Cold
It’s an elitist approach that discounts America’s collective wisdom, except to the extent that the public elects the presidents who appoint the judges.