September 19, 2007

Rumor has it that some discontented conservatives have griped about his ruling in Dong v. Slattery, which deferred to an executive-branch determination that China's coercive one-child policies do not constitute "persecution" for which political asylum is appropriate. Andrew McCarthy at NRO disposes of the criticism in a brisk but detailed fashion. "Our political representatives could have changed the [determinative] Chang rule at any time if there had been the will to do it. There wasn't, and it is not the place of federal district judges to conduct foreign affairs or make asylum policy." And: "I'm sorry, but I don't get conservatives who complain about judicial restraint until their own policy preferences are at stake -- at which point they want politically unaccountable judges to freelance on policy."

P.S. Various Volokhii are pointing out that early reports of supposed conservative misgivings about Mukasey may be much exaggerated, perhaps even for Machiavellian reasons.