Certain friendships at the Court are also well-known, such as the friendship between Justice Scalia and Justice Ginsburg. They attend the opera together, their families spend New Year's Eve together -- and they even ride elephants together! (No, that's not a euphemism for something dirty; click here for a great pic of AS and RBG riding an elephant together.)
Based on their divergent judicial philosophies, the closeness of Justice Scalia and Justice Ginsburg might be surprising to some. But it's not as surprising as it might at first seem. Consider the following:
1. AS and RBG have a shared background: they're both former D.C. Circuit judges and law professors, with an academic bent.
2. Even though they have different ideologies, they respect each others' intellects (and are widely regarded as being two of the smartest among the nine justices). Cf. the Kozinski-Reinhardt friendship ("Yes, we disagree with each other violently. But we're BFFs because we're the coolest kids on the playground -- the two smartest judges on the Ninth Circuit!").
3. Justice Scalia's real beef is with people who OUGHT to be conservative, but aren't (e.g., Kennedy, O'Connor, Souter). He's fine with Justice Ginsburg, perhaps on the theory that "she's supposed to be a liberal, and she is a liberal!"
With the passing of Chief Justice Rehnquist we've witnessed no shortage of experts telling us how the chief justice either enhanced or endangered American life. This blawg hasn't been immune from this syndrome. [I cite here, and here.] When commenting on the Rehnquist legacy, the new norm of incivility in politics means being a witness to positive and respectful comments along with retrospectively hypercritical ones. Even his colleagues on the court, sans Souter, shared their thoughts, all positive. The blogosphere offers the simple, to the heartfelt, to the disdainful.
Alan Dershowitz, the Felix Frankfurter Professor of Law at Harvard Law School, has through two opportunities, and more to come, I am sure, taken to disparage Chief Justice Rehnquist.
So I will buy that Clinton did not, by and
large, appoint terribly left wing people to the judiciary. But I do not
accept that he did so because virtue demanded it: he did so because the
mainstream is well to the "right" of Senators Schumer and Kennedy, and
he was well to the right of them most of the time as well.
We've discussed at length what should or should not be asked John Roberts, and how he should or should not answer. What bothers me about this nomination is that conservative senators and commentators (not here) are blowing a great opportunity to engage the Left on judicial philosophy. We should engage on the commerce, religion and takings clauses. We should engage on so-called privacy rights and abortion. We should challenge the Left's equal protection jurisprudence (including, in my view, the inevitable decision on same-sex marriage) and Congress's legitimate power to reduce (or expand) judicial jurisdiction. Instead, conservative senators and commentators are surrendering the field with defensive and bureaucratic arguments. We should debate the proper role of the Court, not side-step it. The Court is too powerful and the justices are out of control. From partial birth abortion and eminent domain to foreign law and due process rights for unalwful enemy combatants, the public stands with us.