Third GOP Judicial Reform Drive?

Writing in today's LATimes, Cass R. Sunstein, a law prof at the University of Chicago, posits that the GOP is up to no good on judges. This really stupid story is striking the heartstrings of liberals, becoming the third most emailed LAT story today.

Sunstein lays out three attacks by the GOP on the judiciary. First was the Goldwater-era move by conservatives to attack liberal activist judges for finding vaporous constitutional provisions which they used strike down decisions of elected officials, i.e., the battle over the Miranda case. The second is originalism, as championed by Justice Scalia. The third:

But now we are witnessing a third wave of attack, in which originalism is receding, and in which many conservative politicians want judges to read the Constitution, and the law in general, as if it fits with the Republican Party platform. After all, Republican presidents have succeeded in reconstructing the federal judiciary so that it is dominated by handpicked GOP appointees. Liberal activism is dying if not dead. Why shouldn't Republicans take advantage of their dominance of the judiciary to ensure that their preferred policies are implemented by courts?

Drawing on the Schiavo case, Sunstein defines this "new assault" as follows:

In [the Schiavo] case, the law clearly did not authorize federal judges to order Schiavo's feeding tube reinserted — but some Republicans are outraged that the judges did not have it reinserted anyway. On Wednesday, House Majority Leader Tom DeLay instructed the Judiciary Committee to investigate federal court decisions in the Schiavo case.

The attack on the judges who refused to order the feeding tube reinserted may be trivial by itself. But it is of a piece with something much more important. In recent years, some conservative politicians have been insisting that federal judges should strike down affirmative action programs, protect commercial advertising, invalidate environmental regulations, allow the president to do whatever he likes in the war on terrorism, use the Constitution to produce tort reform, invalidate gun control regulation, invalidate campaign finance laws and much more — regardless of whether they can find solid justification for these steps in our founding document.

It's amazing that such archetypical liberal law professor hooey becomes so rubustly e-mailed, despite his [thanks for that correction Alain] opinion's many flaws. Who are these "some conservative politicians?" They go unnamed. Are they really arguing that these laws should be struck just because they want them to be? Of course not. Is anyone really suing to invalidate environmental regulations? No, only to review and revise them. And on and on.

We are not as stupid as this man, who probably still thinks Bush is stupid after all his stunning victories, thinks we are. We know how the law works, and each claim above is not structured on a "because we want it" brief, but on a carefully crafted constitutional analysis.

Sunstein is guilty of mighty condescension in this article, minimizing the intelligence of his opponent, letting his like-thinking readers assume a similar self-agrandizing hautiness, and ignoring the fact that Democrat activists use the same systems the same way that GOP activists do. But it still doesn't stop the LAT's liberal readers from gleefully e-mailing it off to their buddies.