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More On Civil Liberities, Obama And Jeffrey Rosen

By Big Tent Democrat

Big Tent Democrat

Scott Lemieux replies to my post on his post about Jeffrey Rosen on Obama on civil liberties. Did you follow that? Hope so. Anyway, Scott writes:

Armando, like several commenters, isolates this passage in the Jeffrey Rosen op-ed I blogged about yesterday and uses it to reject the entire analysis:

Mr. Obama . . . is not a knee-jerk believer in the old-fashioned liberal view that courts should unilaterally impose civil liberties protections on unwilling majorities. [. . .]

The first sentence is, indeed, normatively problematic, and I don't think I can be criticized for being unwilling to criticize Rosen's criticisms of liberal "judicial activism."

Correct. Scott has, like me, been a severe critic of Rosen on this score. That is why his overlooking this critical passage surprised. In this followup, Lemieux rejects Rosen's view of Obama on this point. For the record I did not reject the entire analysis, I merely isolated this passage as the most critical and problematic part of Rosen's piece. I also must quibble with the rest of Lemieux's analysis:

Lemieux writes:

The second point is more important, and a strong point in Obama's favor. Rather than hoping (usually in vain) that the courts will correct bad legislation, Obama actually tried to make bad legislation better in civil liberties terms.

(Emphasis supplied.) It is noteworthy to me that Lemieux is arguing that whether a President believes in legislative civil liberty remedies is more important than whether a President will appoint judges and Supreme Court Justices who believe the courts should be a bulwark for the protection of civil liberties. Presidents come and go in 4 or 8 years and have to work with the Congresses as they exist. But when it comes to judges and Justices, they appoint people for life. Do the names Scalia, Thomas, Alito and Roberts mean so little now?

And I think it is important to note that Lemieux's endorsement of this Rosen article was not unique from Obama supporters. Consider this post from Hilzoy, approvingly citing the passage in question. Her failure to recognize the problems in Rosen's piece, indeed in not even acknowledging that Rosen is one of the most virulent opponents of civil liberties because of his view that courts should not be bulwarks for protecting civil liberties, is not encouraging. Lemieux gets it. Most Obama supporters seem not to.

I also think Lemieux is wrong when he writes:

Rosen most certainly has a point empirically: as history quite conclusively demonstrates without allies in other parts of the government the courts are, in fact, extremely unreliable protectors of civil liberties. The judiciary has done very little to rein in Bush's assertions of arbitrary executive power, and this is predictable; without a better civil libertarian in the White House this trend will continue.

I think history does not bear this out at all, except as a function of Presidents naming the right type of Justices. The Warren Court revolution did not happen because Ramsey Clark was the Attorney General. It happened because the Court was comprised of Warren, Brennan, Marshall etc.

Indeed I believe Lemieux disproves his own argument:

[S]ubsequent Courts appointed by more conservative presidents have gutted most Warren Court landmarks. Unlike Rosen, I don't regard this as a largely salutary development, but Rosen is certainly right that this is what happens when the political branches aren't committed to civil liberties.

No. This is what happens when conservative Presidents appoint Supreme Court Justices who do not believe that the Court should be a bulwark of civil liberties. Nixon, Reagan and Bush as Presidents did not gut the role of the Court. It was when they appointed Justices that they gutted the role of the courts.

Finally, Lemieux argues that:

The most famous opinions of the last 50+ years, Brown and Roe, were always supported by national majorities, and even when the Warren Court's school prayer and criminal procedure decisions were counter to majority opinion they had significant support in the executive branch.

(Emphasis supplied.)I do not accept that. When Brown and Roe were decided, there was no clear national consensus on segregation or a woman's right to choose. More importantly, I am certain the Justices had no idea if there was a national consensus on these issues when they decided these cases. Was it countermajoritarian? Perhaps not. But it hardly embodied the clear consensus of the public. As for the school prayer and criminal procedure cases, I doubt that what the Johnson Administration thought about those cases entered the thinking of the Justices, other than those with close personal ties to LBJ himself (that is another story.)

In closing, I want to say that I agree with Lemieux that Rosen is wrong about Obama's view of the role of the courts. But Lemieux goes too far when he pretends the issue is of lesser importance. In my view, there is nothing more important to determining a potential President's commitment to civil liberties.

Full post as published by TalkLeft on March 03, 2008 (boomark / email).