Demagogue

Hours after I broke the story (well, after I linked to a widely-read source that had long since covered it), the New York Times writes about Arlen Specter's letter to John Roberts.

Not to be too snarky, the Times story does a good job of laying out the basics of the issue, including one of the more troubling aspects that I neglected to comment on earlier today: the Court's insistence that Congress compile a record supporting its "findings," and, what's worse, the Court's scrutinizing and perhaps entirely dismissing a decade's worth of hearings and evidence that Congress found compelling, as the Court did in Morrison in tossing out part of the Violence Against Women Act. (NB: If the Court affirms the lower courts that have been striking down the Partial Birth Abortion [sic] Act, conservatives will also bristle at the brushing aside of the counterfactual "findings" set forth in the Act's text).

VAWA was one of Specter's personal legislative triumphs. Maybe that's why he's in such a snit. Whatever the reason, I'm glad he's raising the profile of what I think should be the front-and-center issue regarding this nomination. After all, what's the point of renewing certain sections of the Voting Rights Act if five justices, including Roberts, are going to say that Congress has no power to do so after all?

Not that I think Roberts should be voted down; I still haven't seen anything that comes close to satisfying me that Dubya's choice shouldn't be deferred to. But the "federalism" issue needs to be aired if we're to have an intelligent discussion of where the Court is and where it's headed.