Now that Steve has taken care of the more shameless opponents of the Roberts nomination, I should like to turn to a somewhat more principled topic which was raised in Geoffrey Stone�s piece on the Roberts nomination from the Chicago Tribune.
One of Stone�s arguments in favor of Roberts was that he was educable, by which was meant that he would in time understand the importance of justice and compassion and drift toward the left in the same fashion as, say, Sandra Day O�Connor. There is little question that the leftward drift has been the dominant feature of Supreme Court jurisprudence in the last 50 years. But it is both dangerous and misleading in my view to think that this pattern has some independent justification in legal or political theory.
Start with the question of compassion. The first question is, why is that relevant at all to the question of adjudication? Stone�s area of unquestioned eminence is in the First Amendment, especially as it relates to free speech in time of war. There are many arguments that one can make that the overreaction to free speech was not justified by national security concerns�arguments that any person who believes in liberty can easily accept. But the reason for this judgment is some cost/benefit calculus. It surely cannot be compassion for the speakers, some of whom are laudable, but many of whom are not. Indeed the critical move in this enterprise is to take the long view of the subject matter so that our love or dislike of individual parties does not blind us to the important issues of principle at hand. There are issues of justice at stake, but they point to the need for dispassionate analysis.
I think that the same could be said of other areas of constitutional protection, whether they relate to religion or property, for example. I would not defend the position of Ms. Kelo and her friends on the ground that they were proper objects of compassion, but on the distinct ground that no person, rich or poor, should be made a pawn in the great struggles over land use. But if it were compassion that were at stake, then surely here we have one example where the conservative defenders of property rights get the nod, not the liberal planners. Remember it was Rehnquist, O�Connor, Scalia, and Thomas that saw through this unfortunate event. The left wing of the court was so enamored in its deference to central planning that it ignored the plight of the individuals whom they were willing to see evicted from their homes, with compensation that--under earlier Supreme Court cases--falls woefully short of being just.
So I think that the Stone position is twice in error. It introduces a variable that does not belong in judging (however vital it is in other human endeavors), and then falsely assumes that it lines up in some neat way with the left/right split, such as it is, on the Supreme Court.