I hate bad punditry

Every day I spend a hunk of time on realclearpolitics.com. They include the important political writings of the day from across the spectrum: columnists, bloggers, editorials, magazines, think-tanks and more. I skip quite a lot, depending on the source and subject. I'm not focusing on the 2008 horse-race because today's news and analysis will be forgotten in a month or less. I don't read cheerleaders or trolls, which means that despite my staunch right-wing politics I click on American Prospect columns exponentially more often than Ann Coulter.

There are times when I read a column from the left and nod my head. It can be from outright agreement or just "that's a fair argument", and reading such columns has given me a lot of respect for my ideological opponents. Many writers have enough intellectual honesty and intelligence to overcome my initial contrarianism. However, not everyone is so skilled.

On most days I stumble upon a sentence, or a paragraph, or a piece of writing whose contents grate on me. Whether it's bad information, faulty reasoning or a worn-out talking point, it drives me crazy that I have no means of response. Or I should say it drove me crazy, because now I have this blog to vent my spleen onto for literally TENS of people to read. So here's an incredibly long example:

http://www.prospect.org/cs/articles?article=the_myth_of_the_balanced_court

Cass R. Sunstein is complaining that the court is too far to the right. Considering that Kennedy is the center, the court can be fairly called right-leaning, so it makes sense for a Prospect writer to be concerned. However rather than making a straightforward, strong case that it will take a couple new nominations by a Democrat to rectify the situation, Cass grasps at every straw.

In 1980, John Paul Stevens stood at the center of the Supreme Court. Today, he is its most left-wing member -- and he hasn't changed.

That's the tag line, and it tells you exactly where things are headed. 1980 is the benchmark that courts should be judged by, and Stevens ought to be the center. Now, Cass should desire that the court move that far to the left, but the concern isn't based on pure ideological wishing. Look at the title: "The Myth of the Balanced Court". Meaning that the goal is balance, with a few clear leftists and a few clear rightists and one or more centrists to balance things out. Me, I'd prefer a court with Roberts at the center, but I can't expect Cass to feel that way. Cass however has set the table thusly: Stevens was the center and that's how to achieve a balanced court. Not a progressive court, a balanced court.

The body of the column starts by establishing a fair point: that the court is tilted to the right and that the media should report it as such. I'd say that there isn't really a problem because I hear far more of "Kennedy is the center" than I do "Kennedy is a centrist", but I won't quibble over this point. Now we get to the red meat.

Cautious on the lower courts, Ginsburg and Breyer were prescreened by and fully acceptable to Republicans on the Senate Judiciary Committee. Both their votes and their opinions have been far more moderate than those of the great liberal visionaries of the Court's past, such as William O. Douglas and William Brennan. Souter is a Republican appointee. His approach to constitutional law is in the general mold of Justice John Harlan, the great conservative dissenter on the Warren Court. Stevens, also a Republican appointee, was a maverick on the Burger Court, far to the right of three of its members. Contrary to what you hear, Stevens hasn't much changed in the last decades.

'Cautious on lower courts' is meaningless. Judges are often more reserved before reaching the top, especially when they know they'll have to be screened by partisans. As for whether they're left or right, Sunstein notes that they're less-left than several past judges. That doesn't prove anything either as far as whether they should be considered centrists. Souter was nominated by Bush 1, which is meaningless in determining where he stands. His approach being theoretically in the mold of Harlan doesn't mean it actually is. He was nominated in the hopes of getting someone like Harlan; very few court watchers would say he fulfilled those hopes. Stevens being a maverick on the Burger court doesn't disprove that he's currently a liberal, and "hasn't changed that much" is an admission that he has shifted at least somewhat to the left.

In 1980, when I clerked at the Court, the justices were, roughly from left to right, Brennan, Thurgood Marshall, Harry Blackmun, Byron White, John Paul Stevens, Lewis Powell, Potter Stewart, Warren Burger, and William Rehnquist. Believe it or not, this Court was widely thought to be conservative.

So you've got four solid leftists, Powell and Stewart were centrists, Stevens is acknowledged as to the left of them in 1980 and has moved further left since, and Burner and Rehnquist can be considered on the right. That's a 4-3-2 or 5-2-2 split leaning to the left. The only way I can imagine that being considered conservative is if it was compared to past courts rather than actual, you know, conservatism. By calling the 1980 court conservative, when even a tiny bit of knowledge or inquiry shows otherwise, Sunstein is trying to say that it should be the model of a balanced court. There's a debate to be had as to whether 1980 centerpoint Stevens was more to the left than 2007 centerpoint Kennedy is to the right, but the fact is, Stevens was leftist at the time and thus the court was leftist as well.

Again, Sunstein could have handily proven an easy point and focused on how the media portrays today's court and Kennedy. Instead, the coverage is assumed to be biased and the 1980 court being conservative, which is a reach, quickly becomes an assumption as well.

But think, just for a moment, about how much would have to change in order for the Court of 2007 to look like the supposedly conservative Court of 1980.

So he goes on an extended mental exercise of showing how far the 2007 court is to the right of the 1980 court. Hey, I won't disagree that the court has shifted to the right. The problem is that "1980 = conservative court" is the central premise. It would take a much longer, and much more detailed column to even begin to prove that, if it's possible to begin with. Sunstein's hand is tipped even more in the next section.

The consequences are huge, both for constitutional law and for public debate. When Kennedy, rather than Stevens, looks like the moderate, people's sense of constitutional possibilities, and of what counts as sensible or, instead, extreme and unthinkable, shift dramatically. Not long ago, Marshall and Brennan served as the Court's visionaries, offering a large-scale sense of where constitutional law should move. They thought it preposterous that affirmative action should be treated the same as old-fashioned racial discrimination, and their views on that question put real pressure on the Court's center. They wrote in clear, bold strokes against decisions to invalidate campaign-finance restrictions and to restrict access to federal court; their opinions pressed the Court toward moderation on those subjects.

So he's essentially saying that Kennedy is 'extreme and unthinkable'. Marshall and Brennan, who were the leftmost of the 1980 court, moved the court in a moderate direction. Opposition to affirmative action is no longer simply a different point of view, but an untenable one. Sunstein's entire column is supposed to be about how to get to a moderate court, but now it's clear that a progressive court is the true goal. I wouldn't have a problem with someone writing about wanting a progressive court, especially in the Prospect, but he disguises it as wanting moderation.

The results of the shift have been momentous. Where once it seemed clear that the Court would generally accept congressional judgments in favor of affirmative-action programs, the Court has now made clear that such judgments will be subject to "strict scrutiny" (and generally struck down).

Or in other words, he wants a default leftist court and now it isn't. Even questioning affirmative action is intolerable. He doesn't want a centrist court, he wants a progressive rubber-stamp. That's poor argumentation for a professor of law. This same kind of argument is then extended to other issues: the court isn't on the left so it isn't balanced. His own words disprove his assertion that the 1980 court was conservative, because he wants a court that debates how progressive to be rather than whether or not to be progressive.

The upshot of all these shifts is that what was once on the extreme right is now merely conservative. What was once conservative is now centrist. What was centrist is now left wing. What was once on the left no longer exists.

This is only true if you're basing it on where the court was at and before 1980, not if you base it on overall political and legal thought in America. Is there nobody as far to the left as Marshall on today's court? Probably. Does that mean nobody on the court today is leftist? Hardly. An easy way to tell is to see how often progressives complain about decisions which Stevens or Ginsburg or Breyer are in the majority, and compare it to how many conservatives complain about decisions where Kennedy is in the majority. I've seen lots of the latter and very little of the former. If Ginsburg was merely centrist then she'd be to the right of progressives 50% of the time and would regularly draw fire from them.

Cass goes for far too much early on and never stops reaching. That would be tolerable in a standard partisan cheerleader, but I'd hope for more from someone of his seniority and experience in the field of law.