replevin123 wrote: ↑Thu Oct 01, 2020 1:35 am
bad look on the entire elite tier? so says
your philosophy. Reasonable minds can disagree on the power and legitimacy of the court in its substantive due process jurisprudence, regardless of their views on the individual value or "right" at issue (which for many is beside the point because for them the whole game is about who gets to decide what). These kinds of op-eds help to reinforce what is increasingly lacking in today's political climate: that reasonable minds can disagree on deep legal issues.
While not especially illuminating, I think these op-eds have some value:
(i) They remind people that political disagreements can be respectful and show acknowledgement of a worthy adversary (unlike the terrible debate we just saw).
(ii) They help to humanize the other, which goes to the reasonable minds point. Not everyone you disagree with is evil, immoral, or wants bad things for people. They might just have a different legal view and believe in a different path to get to generally the same outcome that you want: a better, safer, happier country/world where people are free.
(iii) They're simply informative in a personal, interesting way. We get to learn a little bit more about the person we're all talking about.
Eh. I'm with Markman here. These kinds of op eds
can be illuminating, but they usually aren't. These aren't; to the contrary, they're classics of the genre. Feldman's is, pretty much, "I know her, and we rubbed elbows, and traveled in the same circles, and she's definitely smart enough/accomplished enough/credentialed enough/nice enough to be on the Court." The clerks, meanwhile, saw how wonderful and brilliant and inspiring she is, which: great! Most of us are not going to be clerking for her.
As to your points about humanization/respectful disagreement:
The problem with treating politics (and let's not kid ourselves: the Supreme Court is a political actor) as a debate society is that "mere politics"
affects people. Now, I agree with you completely that humanizing your adversaries is a good thing, and a sign of a healthy democracy and civic culture. But: I mean, check out the Best and Worst Judges to Clerk For thread. There's no shortage of the following description: "Extremely conservative, but a super sweet guy. Great to work for."
(In fact, lots of people in the United States would be in for a hell of a shock if they worked in DC for even a month or so. Those people acting like warring camps on C-Span? Lots of them get along perfectly well off-camera, and are even pretty friendly. Does that mean that, say, cutting funding for contraceptive services is any less of an important issue? Goodness no.)
I do not doubt that Judge Barrett is a lovely, smart person. I do not doubt, for a second, that she "deserves" to be on the Supreme Court, at least as elites define it: she has impeccable credentials of the sort that set Harvard profs' hearts aflutter. I do not doubt, moreover, that she embodies a judicial philosophy that I 1) stridently disagree with but 2) completely acknowledge should exist and can exist.
But none of that really matters, does it? That isn't the point of this. The point is that she's being appointed on the eve of the election and will flip the power structure of the Supreme Court, potentially for the rest of our lives. Whether she'll be a consistent vote for the Alito wing is yet to be seen, but she'll surely be a more consistent vote than, say, Ginsburg was. We can pretend otherwise, but we'd be kidding ourselves. And that vote difference will matter. It will matter to criminal defendants in one way, LGBTQ people another way, and the Chamber of Commerce a third way. But it will definitely matter. You may feel differently about
how it will matter, and if you're lucky, most of the changes won't affect you personally. But things are going to change and knowing that she's brilliant and inspiring and classically credentialed informs me not one iota.
So in that way, these op-eds, and especially the one from the clerks, sound a discordant note. The world is full of great, nice, kind, smart, towering, adept-at-baking inspiring people who strive to make my daily existence materially worse. Maybe they do not do so "on purpose"—my reproductive autonomy as a woman of childbearing age is just an incidental causality of their disagreement with the scope of non-Lochner substantive due process, and my ability to bring suit in court as opposed to being locked into mandatory binding arbitration arises out of respectful disagreement about the scope of the Federal Arbitration Act and the wisdom of class actions.
The debate about the effect she will have is the right one. It's the one that matters. The Feldman and ex-clerk stuff, motivated at least partly by apparent self-interest, does not.
She deserves to be there. I can't wait to see what she does to me.
(This post brought to you by my existential dread spilling over into public posts on internet fora like these, because my other option is to join Twitter or something.)