Adam Cohen has what can only be characterized as a screed in today’s New York Times entitled "Deborah Cook Is the Typical Bush Judicial Nominee--So Watch Out." In the article, he marches through a list of cases, trying to make the argument that Justice Cook, who sits on the Ohio Supreme Court and is awaiting Senate confirmation to the United States Court of Appeals for the Sixth Circuit, is biased in favor of corporations and hates the little guy. But instead of succeeding, he only shows that Justice Cook is the kind of jurist that liberals claim that they want: one who defers to legislative judgments.
You see, in most if not all of the cases Cohen listed, the proper question was whether the plaintiffs filed their claims within the time prescribed by the legislature. Justice Cook followed the direction of the legislature, even when her colleagues chose not to do so. Anyone who read left-wing law professor Cass Suntein’s latest article, "The Right-Wing Assault," would think that Justice Cook is a model judge. Sunstein argues that the problem with Republican nominees is that they are activist, and that these same judges are on a rampage of striking down laws passed by popularly elected legislatures. Using Sunsteins methodology, Justice Cook’s colleagues were on a rampage of ignoring the filing requirements established by the legislature, and she chose instead to follow the direction of the elected branch and to dissent. Justice Cook should therefore be a fine selection for messrs. Cohen and Sunstein. Of course, that would assume that Cohen and Sunstein were interested in something other than a base, results-oriented jurisprudence. But Cohen’s article looked only to the results of the cases without pausing even for a moment to consider the law, and Sunstein’s article chose selectively from decisions in which he did not like the outcome, while ignoring decisions in which he approves of the outcome like Romer v. Evans--a decision for which he has publicly praised the Supreme Court for striking down a popularly enacted initiative based on, to borrow his phrase, a Constitution of "ambiguities and generalities."
Despite all the lofty rhetoric, Cohen and Sunstein’s recent articles make their position abundantly clear: the law doesn’t really matter--only the outcomes do.