SCOTUS: Douglas Kmiec Explains Federalist Society Opposition Tack
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During the press call regarding the Dawn Johnsen nomination the other day, I asked former Reagan/Bush 1 OLC head Doug Kmiec about the right using the law as their political flashpoint — especially in the Obama administration the last few weeks.
Why some people will say one thing and then do the exact opposite always troubles me. And none more so than pseudo-rule of law sticklers who use their public legal support pronouncements to cover writing and promulgating the torture memos out of OLC.
Or opposition to well-qualified nominees like Dawn Johnsen and Harold Koh, or whomever may be the next SCOTUS nominee in the current context.
Kmiec’s response was intriguing:
That’s an interesting thought as to why law is the flashpoint, rather than some other policy venue or area, although we see it a little bit with Kathleen Sebelieus and the health topic as well.
But I…if I was to venture a supposition, it would be that I think the lawyers have never ceased to be organized. [chuckle from Walter Delinger in the background] They are…the loyal opposition, as it were, is loyally intense opposition.
The loss of Senator McCain was felt by my colleagues in the Federalist Society very deeply. Because it seemed to them to be a signal that all that they had worked for in terms of the principles of original understanding and that type of constitutional method and judicial restraint was now…now lost.
So I think when you have individuals such as Dean Koh and Professor Johnsen, they become the poster children for aiming this sense of regret about the last electoral outcome.
And that here the great ability to argue for common ground has not taken as much root because the ground is just simply harder and rockier than it is in other…in the area of other social questions or in the area of other policy questions.
And you do have this opposition, as I say, that has a well-established organization where people think along similar lines, that maintains a well-presented set of arguments every day in terms of the blogosphere as well as through conservative magazines and the like.
I may be speaking by virtue of spending all of my time in this carnival rather than visiting other circuses, but I get the sense when I just surf around the net outside of my forest — I’ve mixed a lot of metaphors there — when I’ve searched outside of my area, that the organization of others to some degree gave the President either the benefit of the doubt to find common ground on policy questions or were so intellectually exhausted and spent that they needed time to regroup. Whereas the lawyers just simply maintained their anger and resentment and disagreeableness, and have now channeled that to some degree toward these nominees.
If anyone thinks this will dissipate instead of ratchet upward in intensity for a SCOTUS nominee, think again.
Wouldn’t it be nice if media outlets recognized and identified particular biases and agendas for their interviewees out loud and up front so that people reading or watching would have that information in hand to fully evaluate what is said?
Note that there is no room for compromise, regret or bending.
It is an "our way or nothing" strategy that is found not just within the Federalist Society but within the GOP conception of "bipartisanship" as well. If anyone in the Democratic leadership thinks this is something to be negotiated away or overcome over time, they are only fooling themselves. This is a cultural choice among Republican leadership and strategy, and a tactical choice that is made precisely because they view the Democratic side as weak and liable to compromise.
Because they do.
Time to pick up the Sun Tzu and the Machiavelli, kids. It’s going to be an ugly slog through the next few years without some changes. But changes will require scrutiny, sunlight and exposure — and I’m not at all confident that these entrenched problems will get remotely enough of any of the above. You?
Morning Christy. I keep hearing this pro abortion thing with regard to an Obama nominee. I consider the question to be a religious one. Therefore isn’t a consideration of this an application of a religious test in violation of the constitution?