Professor Bainbridge seems to be saying that it’s appropriate for Republicans to have an opinion regarding how judges should be ruling. I agree, because I certainly have my opinions. One of the cornerstones of a free country is the right to have an opinion regarding how it should be run.
I would like to remind the world that it was Democratic president Franklin D. Roosevelt who first politicized the courts. Back in those days, the Supreme Court held that under the Constitution, the federal government had only limited powers (which are enumerated in Article I Section 8 ).
The history books remember FDR’s plan (which didn’t have the support of Congress) to pack the Supreme Court, but they tend to forget that during his four terms as president he appointed eight Supreme Court justices (Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James Byrnes, Robert Jackson, and Wiley Rutledge), and every single one of them agreed with FDR’s way of thinking when it came to the powers of the federal government.
After FDR changed the makeup of the Supreme Court, we saw a radical shift in constitutional law, and often the new members of the court abandoned the principles of stare decisis and completely ignored the old rulings. In Wickard v. Filburn (1942), the Court ignored its entire history of rulings and established the new principle that Congress has the power to do anything it wants.
In a comment to a previous post, Kathy questioned my statement that liberals achieved their policy goals by having their guys on the courts. Hopefully, this post will serve as an additional example of how that happened.
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Captain Ed thinks that the NY Times Magazine article is part of a left-wing offensive against GOP judicial nominees.
This piece didn't just appear by accident in the NYT. This article coordinates with a campaign under way by the Democrats to paint GOP judicial nominees as dangerously extremist and out of the mainstream.
Whatever the motive for the piece, I think that by getting into print the actual details of what conservative jurists believe, it will help publicize a point of view that has been completely ignored by the mainstream.