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 Sunstein’s 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.
Cohen’s essay is thinner than the newsprint on which it is printed for the reasons Alt mentions. Sunstein’s essay deserves more attention, however, because it is more substantive and more ambitious in attacking judges and justice department officials who believe in federalism, the Commerce Clause, the First Amendment, and the rest of the Bill of Rights. Apparently if this movement of "right wing judicial activism is left unchecked," the Supreme Court may even "elevate commercial advertising to the same status as political speech." Imagine the horror. (Of course, considering the way political speech is regulated by McCain-Feingold, we should be so lucky as to have political speech that is as free and unfettered as most commercial advertising.) I am not necessarily a "true blue" supporter of every aspect of the Rehnquist Court’s legacy, but even I cannot read Sunstein’s article without becoming annoyed by the Chicken Little quality of the piece. The sky is not falling... at least not for the reasons that Sunstein suggests. What does hurt the federal judiciary in its daily functions and its institutional integrity is a bitter appointment process driven by deeply entrenched political special interests. The never-ending, always-escalating nature of the present cycle of retribution being played out in the Senate is beginning to make the story of the House of Atreus look like a six-week run of Days of Our Lives. One can debate whether Democrats or Republican are to blame for this, but reasonable people with political savvy and genuine best wishes for the federal judiciary should know that such debates only perpetuate our mutual misery and cultivate a culture of political recrimination. Democrats blame Republicans... Republicans blame Democrats... And the courts and the country as a whole continue to suffer.