Diluting The Argument

Via Talk Left, I find this interesting article by constitutional scholar (and self-professed moderate) Marci Hamilton. She seems to be a true centrist, seeing the limitations and extremism coming from both sides of the political divide. She’s obviously very smart, which is why I cannot believe that she begins her argument with this:

In recent years, the Supreme Court has been pilloried by the far right for being “activist” – while at the same time also being castigated by the far left for being “imperialistic.” When these kinds of allegations are trotted out by both ends of the political spectrum, it is very good evidence that what the Court is doing is neither activist nor imperialistic.

That’s not good evidence at all. All it means is that both sides have criticized the court; it says nothing about whether those criticisms are correct. Her reasoning is that if two parties criticize something, the object of their criticism must,therefore, not be guilty of either sides’ criticism. That’s nonsense. It could very well be true that the court is activist or imperialist or both or neither.

The press often uses this fallacious reasoning to fail to investigate whether criticisms of them might be true. If both liberals and conservatives are angry with something they wrote, then what they wrote must be correct. It’s lazy rubbish.

In fairness Hamilton goes on to make a persuasive case that the court is neither activist nor imperialist, but it is based upon her analysis of the arguments not the “evidence” that the court is criticized by both sides.

I would argue, however, that there is a difference in scale and power that she should have taken into account. The alleged attacks coming from the “extreme” left about imperialism are many magnitudes less significant than those coming from the right. By framing this argument as if both “extremes” are equal in the daily discourse she gives a false impression of the weight of the arguments and their practical implications in the coming judicial battles.

The liberal argument about “imperialism” is simply not on the table. Nobody is talking about it and there is no notion that any judicial nominee or any public criticism of the court is going to be swayed by this point of view. Hamilton makes an excellent argument against the idea that the Supreme Court is activist. But to offer this analysis as if the left’s criticism of the Court has the same level of relevance at this time and place is to dilute the power of her reasoning.

These are difficult times for moderates of all stripes, I know. But the present danger is coming quite clearly from the far right. Left wing legal arguments are simply not important at the moment and trying to use their academic musings to create a sense of balance, when the real danger the court faces is from right wing extremists who have the ear of a very powerful and ambitious Republican establishment, is a mistake. This is no theoretical discussion. Moderates can make a real difference this time and they need to be careful that they don’t give anyone reason to believe that this is politics as usual. This is one issue on which they need to take a clear and uncompromising stand — if they don’t, the default goes to those with the political power and the consequences of that are quite stark.

correction: spelling corrected

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