Dahlia (not Dalia) Lithwick's work for Slate and her summer guest column for the NY Times suggest she'd like to be The Next Linda Greenhouse (or maybe"LG Lite"). It doesn't hurt that people respond to her writing with passion. Here's some love. Here's something less than love. And for what it's worth, she's funny.
So what went wrong in her OpEd in Friday's Times?
Lithwick gets tangled around a clever hook instead of making her case for judicial activism, the real issue.
Lithwick's hook: How did Bush, who "got it so right with John Roberts get it so wrong with Ms. Miers?" He didn't, says Lithwick. He got it wrong with both. Behind the book smarts and highfalutin judicial philosophy, Roberts, like Miers, is a pawn in Bush's quest to make the court irrelevant. Roberts and Miers "may have more in common than you think."
How's that?
Lithwick recoils at Roberts's view that "the court exists not to act - not even to react - but chiefly to interpret passively," which means "if Congress wants to protect the weak, it must write crystal-clear legislation." Then Lithwick takes a huge leap, suggesting that something about Roberts's "interpret passively" approach makes him unduly deferential to the executive branch.
Yes, Roberts's approach and some of his D.C. Court of Appeals rulings might have unpleasant, unfair, even enenlightened practical implications (no individual rights for enemy combatants, for example), but what's the alternative? Judicial activism, of course. If Lithwick's OpEd is to carry any weight then she must make a case for it, no matter how abbreviated. Instead she's busy figuring out how to play out the nifty "Roberts = Miers" hook.
It's not as if Lithwick would need to form her own arguments for judicial activism. Plenty of professors and judges have done it. Justice Breyer did it in his book Active Liberty.
The omission is all the more glaring after reading Judge Morris B. Hoffman's OpEd directly beneath Lithwick's. Hoffman: "A week doesn't go by when I am not forced by the law to do something that I would rather not do if I were, say, a philosopher-king unencumbered by the legislation of mere mortals."
Would Lithwick tell Hoffman to spare himself the agony and just go ahead and do what he thinks fair? What, exactly, is her position on judicial activism? More importantly, why?
According to Lithwick, Bush's nomination of the underqualified Miers is like flipping the bird at the Supreme Court. You don't matter anymore so it doesn't matter who I send over.
Miers isn't just any bird. She's a bird primed to rule in Bush's favor because she's his crony. No one expects her to apply a principled judicial philosophy (which definitely isn't the expectation for Roberts). What happens when Bush leaves office? Will Miers lose her bearings? Will her heart and mind be up for grabs?
I'm lost too. How is it again that Roberts and Miers "have more in common than you think?"
Last month I watched part of a William & Mary panel on Justice O'Connor on CSPAN. Lithwick took a beating from Joan Biskupic, USA Today's Legal Correspondent. Lithwick went on for a while about O'Connor never setting out to be a swing vote - it always kind of ended up that way. (Another clever hook.) Then Biskupic, whose O'Connor biography is due out next week, politely explained why Lithwick couldn't be more wrong about O'Connor and her swing votes. O'Connor, said Biskupic, left nothing to chance. Lithwick took it gracefully (silently).
Maybe Lithwick should lay off the clever hooks for a while.
(By the way, the Times, with its Times Select, must think they're doing a service by cutting links quickly. To loosely paraphrase Justice Holmes's "three generations of imbeciles are enough" from the infamous Buck v. Bell, maybe the TImes thinks three days of blog links to a Times OpEd are enough.)