As I explained yesterday here at the American Spectator, Justice Alito’s dissenting opinion in Snyder v. Phelps, the military funeral picketing case, has a lot more force of law than one might expect, given that Alito was a minority of one.
Alito’s compelling dissent shows, I think, the importance of putting great and powerful legal minds on the high court, because even when a lone minority of one, an intellectually powerful justice such as Alito can have a strong and salutary influence on Supreme Court jurisprudence.
For this reason, it seems to me that all conservatives owe David Frum, Laura Ingraham and other farsighted activists a sincere debt of thanks.
Frum and Ingraham, you will recall, spearheaded the fight to recall George W. Bush’s nomination of Harriet Miers to the Court. Bush then nominated Alito instead. And the rest, as they say, is (and will be for decades) history.
In fact, it is worth noting that in Snyder v. Phelps, it was Bush’s two Supreme Court appointees, Alito and Chief Justice John Roberts, who were at loggerheads.
This is a good thing: It shows that far from being intellectually inert and predictable, Alito and Roberts instead are intellectually powerful and dynamic. And so, they will shape Supreme Court jurisprudence in significant ways for decades to come.
Unfortunately, I rather doubt we can say the same thing about Obama’s two Supreme Court appointees, Sonia Sotomayor and Elena Kagan. These two lefties, after all, had scant and unimpressive legal records prior to their ascent to the high Court.
In fact, as legal eagle Jennifer Rubin explained over at Contentions, Sotomayor never impressed the left-wing legal elite, and for good reason:
“She is not a ‘trailblazer’ or a ‘Scalia of the Left,’ [they say]. Translation: she lacks the intellectual firepower to go toe-to-toe with justices who rely on judicial originalism and to sway Justice Anthony Kennedy to their side. She was Latina but not very wise, they now concede.’
Rubin quoted the esteemed legal critic, Jeffrey Rosen, who wrote:
The most consistent concern was that Sotomayor, although an able lawyer, was “not that smart and kind of a bully on the bench,” as one former Second Circuit clerk for another judge put it. “
[. . .]
Her opinions, although competent, are viewed by former prosecutors as not especially clean or tight, and sometimes miss the forest for the trees.
It’s customary, for example, for Second Circuit judges to circulate their draft opinions to invite a robust exchange of views.
Sotomayor, several former clerks complained, rankled her colleagues by sending long memos that didn’t distinguish between substantive and trivial points, with petty editing suggestions — fixing typos and the like — rather than focusing on the core analytical issues.
Some former clerks and prosecutors expressed concerns about her command of technical legal details…
As for Kagan, Rubin summed up the views of one liberal law professor, Paul Campos, thusly: “Kagan is a Harriet Miers type — minus the cronyism.”
That’s Rubin’s summation of Campos. Here’s what Campos actually wrote (over at the Daily Beast):
Yesterday, I read everything Elena Kagan has ever published. It didn’t take long: in the nearly 20 years since Kagan became a law professor, she’s published very little academic scholarship-three law review articles, along with a couple of shorter essays and two brief book reviews.
Somehow, Kagan got tenure at Chicago in 1995 on the basis of a single article in The Supreme Court Review — a scholarly journal edited by Chicago’s own faculty — and a short essay in the school’s law review.
She then worked in the Clinton administration for several years before joining Harvard as a visiting professor of law in 1999. While there she published two articles, but since receiving tenure from Harvard in 2001 (and becoming dean of the law school in 2003) she has published nothing.
(While it’s true law school deans often do little scholarly writing during their terms, Kagan is remarkable both for how little she did in the dozen years prior to becoming Harvard’s dean, and for never having written anything intended for a more general audience, either before or after taking that position.)
The bottom line: If you care about the intellectual integrity and viability of the Supreme Court, give thanks to Justices Alito and Roberts — and ditto the men and women responsible for their nominations: George W. Bush, David Frum and Laura Ingraham.
And lament the fact that President Obama and the Democratic Party are, at the very least it seems, unwilling (and perhaps unable) to match the Right’s record of judicial nominative excellence.