Friday, May 30, 2003


Commenting on Jay Nordlinger's pitch for Justice Thomas to be nominated as the Supreme Court’s next chief justice, the American Constitution Society blasts Justice Thomas's concurring opinion in United States v. Lopez as representative of a jurisprudence allegedly "detached from reality, rigid, and . . . extreme." Apart from taking quotes out of context (thereby making Justice Thomas's lengthy and well-reasoned opinion seem like a feat of ipse dixit) and distorting Justice Thomas's true position (which is not to return to an 18th-century view of commerce, but rather to "construct[] a standard that reflects the text and history of the Commerce Clause without totally rejecting our more recent Commerce Clause jurisprudence"), the ACS criticism represents what has unfortunately become the standard leftist attack on principled jurists: the mere suggestion that judicial decision-making ought to be constrained by the text and history of a legal provision, rather that conformed to prevailing (and preferably liberal) political views, is enough to evoke the "extremist" label. This is, of course, the Schumer/Leahy standard for judging the President Bush's judicial nominees, and it ensures that those persons most qualified for (or at least most willing to adhere to) the proper judicial role will continue to be most vilified by the Left.


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