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Legal News

: Lawbeat

Law held hostage in essay on presidential politics

By Mark Obbie

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The CJR series "Turning Point" on press coverage of the presidential election turns to coverage -- or lack of it -- of likely Supreme Court appointments. Writer Zachary Roth, former media editor at the New York Observer and writer at Washington Monthly, has the politics and media smarts to weigh in on this. But I question his perspective on the law. Roth's argument goes like this: The next president will get some SCOTUS appointments. Activists make sure we know where a candidate, and thus (supposedly) his appointees, stand on abortion rights. But there are many more legal issues that don't get aired. Roth writes:

Americans may go to the polls with no clear sense of how the likely decisions made by the candidates’ judicial appointees can be expected to affect their lives. It’s the press’s job to ensure that we reach a level of clarity on these other issues equal to the one we currently enjoy on abortion.

And where might that clarity come from? To Roth, it's simple: Once you know where the candidate's policy preferences lie, it's a short hop to his appointees' rulings. It's a neat syllogism that supposes a judge's only job is to reach the "right" outcome based on his party's policy positions. Thus, all notion of an independent judiciary and the rule of law goes out the window. Roth, whose beliefs are all too common in political science and advocacy-group circles, is unapologetic about making the argument, writing in his conclusion:

the press should accept that judicial appointments are just as political as any other issue in the campaign, and should pull no punches in spelling out the real-world consequences of the likely rulings to be made by the candidates’ appointees.

Call me naive, but that sounds likely only to ratchet up the pressure on an already overheated and mindless nomination and confirmation process. Here's a different idea: Buy the first part of Roth's argument (we need more coverage of candidates' legal-policy positions, likely SCOTUS appointees, and issues bearing down on the courts) while rejecting the surrender to the judges-as-politicians-in-robes religion. Instead, political writers or their legal-journalism colleagues could report on the real legal struggles that face us if McCain or Obama win: competing interpretations of statutes or the Constitution on a host of important issues, and new schools of legal thought based on arguably legitimate interpretations of black-letter law. They also could explore where most of the struggles take place: in the lower courts, not to mention state courts. (Via How Appealing)

Full post as published by Lawbeat on June 11, 2008 (boomark / email).