Free Republic

In today’s Washington Post, Stuart Taylor, Jr. argues that originalism is no safeguard against “subjective judicial policymaking.” It is not clear whether he thinks originalism is no better at avoiding subjectivity than alternative modes of jurisprudence–and come to think of it, I’m not even sure whether Taylor regards subjectivity as a problem exactly. But in any event, I think his case is remarkably weak when he elaborates his four reasons not to put much stock in originalism. “First,” he writes, “there has never been a consensus on the original meaning” of some of the clauses of the Constitution, and the...

For all the publicity about the Supreme Court's 5-4 reversal of Judge Sonia Sotomayor's decision (with two colleagues) to reject a discrimination suit by a group of firefighters against New Haven, Conn., one curious aspect of the case has been largely overlooked.That is the likelihood that but for a chance discovery by a fourth member of the 2nd Circuit Court of Appeals, the now-triumphant 18 firefighters (17 white and one Hispanic) might well have seen their case, Ricci v. DeStefano, disappear into obscurity, with no triumph, no national publicity and no Supreme Court review.

Unlike some of my predictions, this one proved out. In fact, even Justice Ruth Bader Ginsburg's 39-page dissent for the four more liberal justices quietly but unmistakably rejected the Sotomayor-endorsed position that disparate racial results alone justified New Haven's decision to dump the promotional exam without even inquiring into whether it was fair and job-related. Justice Ginsburg also suggested clearly -- as did the Obama Justice Department, in a friend-of-the-court brief -- that the Sotomayor panel erred in upholding summary judgment for the city. Ginsburg said that the lower courts should have ordered a jury trial to weigh the evidence...

Robert Bork says choosing Sonia Sotomayor for the Supreme Court was 'a bad mistake.'Excerpt: His name has become a verb in the Oxford English Dictionary: if you've been blocked from appointment to public office, you've been "borked." Robert Bork was derailed in 1987 by a hostile Senate. Bork sat down with NEWSWEEK for a rare interview. Pres Obama has spoken of empathy as his key standard for choosing judicial nominees. What do you think of that approach? .......at a minimum it means you want a judge who will depart from the meaning of the constitution when a sympathetic case...

Having praised President Obama's job performance in two recent columns, it is with regret that I now worry that he may be deepening what looks more and more like a depression and may engineer so much spending, debt, and government control of the economy as to leave most Americans permanently less prosperous and less free. Other Obama-admiring centrists have expressed similar concerns. Like them, I would like to be proved wrong. After all, if this president fails, who will revive our economy? And when? And what kind of America will our children inherit? But with the nation already plunging deep...

Dear Mr. Attorney General: Your speech commemorating Black History Month by calling America "a nation of cowards" because we "do not talk enough with each other about race" -- a topic about which we talk incessantly -- was unworthy of the admirable public servant I believe you to be. The speech was, as others have pointed out, embarrassingly misinformed, hackneyed, and devoid of thoughtful contributions to racial dialogue. You can do much better. Please use your bully pulpit in the future to cut through the usual cant and state some politically incorrect truths about race in America that would carry...

OPENING ARGUMENTMisdiagnosing the causes of the crisis could lead both to regulatory overkill and to more reckless risk taking.President Bush, his Securities and Exchange Commission appointees, other free-enterprise dogmatists who have stood in the way of regulating risky and opaque financial manipulations, and greedy Wall Streeters deserve the blame heaped on them for the financial meltdown that has so severely shaken America. But the pretense of many Democrats that this crisis is altogether a Republican creation is simplistic and dangerous. It is simplistic because Democrats have been a big part of the problem, in part by supporting governmental distortions of...

Our Constitution works best when its custodians--the president, Congress, and the judiciary--behave well. In the matter of suspected "enemy combatants," all three have behaved badly. That's why the Guantanamo Bay prison camp has been such a running sore. Even if Guantanamo ends up being closed, the human-rights and public-relations debacles that it symbolizes will continue until a new president and Congress take a grown-up approach to some extremely thorny problems. Problems such as: What should we do with a Guantanamo detainee who, the best available evidence suggests, is probably a jihadist bent on mass murder but who cannot be convicted...

I wholeheartedly support gay marriage. And I am happy for the many gays who rejoiced at the California Supreme Court's 4-3 decision on May 15 ordering the state to stop calling committed gay couples "domestic partners" and start calling them "married." So why do I see the decision as an unfortunate exercise in judicial imperialism? Let me count the ways. Then I'll touch on how it could be a harbinger of the constitutional innovating that we might see if the next president engineers a strong liberal majority--a likelier prospect than a strong conservative majority--on the U.S. Supreme Court. First, the...

When a mentally deluded stripper accused three Duke University lacrosse players of a brutal gang rape at a March 2006 off-campus team party during spring break, dozens of activist Duke professors were not content merely to give great credence to the rape charge, even as evidence of its probable fraudulence poured into the public record. They also treated the lacrosse players as pariahs for having hired strippers at all. So, too, did Duke President Richard Brodhead, Board Chairman Robert Steel, other campus administrators, many in the media, and others. Never mind that hiring strippers violated no law or university rule....

They were loyal conservatives, and Bush appointees. They fought a quiet battle to rein in the president's power in the war on terror. And they paid a price for it. A NEWSWEEK investigation. Feb. 6, 2006 issue - James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey's farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people...

Feb. 6, 2006 issue - James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey's farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed...

Kennedy may check the Supreme Court's tilt toward the right.The Swing Set: Kennedy chats with O’Connor, who may have penned her last ruling this weekJan. 30, 2006 issue - When conservative Washington lawyers who argue before the Supreme Court talk about "the Greenhouse Effect," they don't mean global warming. The Greenhouse in question is Linda Greenhouse, the longtime and esteemed Supreme Court reporter for The New York Times. The "effect" is to subtly push Supreme Court justices to the left. Unless a jurist comes to the court with very strongly held, or even fixed, conservative views, there is a tendency...

Most analysts predict (and I agree) that if confirmed, Judge Samuel Alito will be more conservative than Justice Sandra Day O'Connor, whom he would succeed on the Supreme Court. That's why O'Connor was practically begged to stay on by liberal Democratic senators such as Barbara Boxer of California and Patrick Leahy of Vermont; moderate Republican senators such as Arlen Specter of Pennsylvania and Olympia Snowe and Susan Collins of Maine; and liberal groups such as the National Organization for Women. Alito's critics have ignored evidence that his 15 years of precedent-respecting work as a judge tell more about him than...

WASHINGTON — With the confirmation hearing for Supreme Court nominee Samuel Alito less than a week away, his critics are making every effort to whip up opposition to Alito's joining the court. But ever since the defeat of Supreme Court nominee Robert Bork a little more than 18 years ago, conservative activists have vowed not to let such critics go unanswered. The Senate Judiciary Committee will begin the confirmation hearing process for Alito, an appeals court judge. Believing that most Americans are now past the diversion of the holidays, several interest groups for and against Alito are now picking up...

A sometimes subtle but unmistakable pattern has emerged in major news organizations' coverage of Judge Samuel Alito's Supreme Court nomination. Through various mixes of factual distortions, tendentious wording, and uncritical parroting of misleading attacks by liberal critics, some (but not all) reporters insinuate that Alito is a slippery character who will say whatever senators want to hear, especially by "distancing himself" from past statements that (these reporters imply) show him to be a conservative ideologue. I focus here not on the consistently mindless liberal hysteria of the New York Times' editorial page. Nor on such egregious factual errors as the...

You might think that something huge was at stake from the sound and fury accompanying the November 30 Supreme Court argument about New Hampshire's restrictions on minors' access to abortion, and the pending challenge to the 2003 act of Congress banning "partial-birth" abortion. Abortion-rights advocates warn that any decision upholding restrictions on abortion in either case would jeopardize women's health and set the stage for evisceration of Roe v. Wade. Anti-abortion advocates portray the lower-court decisions striking down these laws before they took effect as steps toward the destruction of the American family and the legalization of infanticide. The reality...

She once told me that the president was the most brilliant man she had ever met." So reports conservative writer and former Bush speechwriter David Frum, in National Review Online. Unless White House Counsel Harriet Miers explains that she was joking or Frum was hallucinating, this alone may cast enough doubt on her judgment to warrant a "no" vote on her Supreme Court nomination.But before detailing Miers' liabilities, I should acknowledge her virtues. She is an impressive person with an admirable record of devotion to duty, self-effacing industriousness, quiet competence, public service, and a kind and caring heart.Miers did very...

Attorney General Alberto Gonzales is a likable fellow and a competent lawyer. He rose from humble Mexican-American origins to join the U.S. Air Force and graduate from Harvard Law School. He has won the trust and friendship of George W. Bush. He wrote 20-some forgettable judicial opinions while on the Texas Supreme Court. And since 2001, he has sat in sphinx-like silence through many high-level meetings on the biggest legal issues facing the nation.

The president's favorite judge had scornfully denounced as "illegitimate" dozens of the "most significant constitutional decisions of the past three decades," as well as others going back to the 1920s. He had excoriated "the modern, activist, liberal Supreme Court" for rulings that recognized rights to abortion, contraception, and other aspects of the "right to privacy"; struck down governmental discrimination against women; outlawed official endorsement of religious symbols; required "one person, one vote"; banned poll taxes; and protected sexually explicit speech. And as if to erase any doubt about what Judge Robert Bork might like to do if elevated to the...