I am happy to reciprocate Wendy Long’s admiration, but I cannot extend that admiration to her post. I just see assertion piled on top of assertion, often off-point. Thus, for example, she disputes the idea that the Constitution mandates color-conscious policies — an idea that I have never raised. She says that “of course” the Constitution mandates color-blindness. That would be news to Andrew Kull, author of the The Color-Blind Constitution, which concludes that the idea to which his title refers “died in the Joint Committee of the Thirty-Ninth Congress.” To Long I “sound like” I am questioning Marbury v. Madison. All I can say is that she needs to listen harder. The idea that conservatives can never fairly be accused of judicial activism, by definition, is eccentric.
Finally, the bit about how I am clouding the issues involved in the Sotomayor nomination and aiding the White House spin machine is repulsive. If my arguments are wrong, then that’s enough of an indictment. If they’re right, their inconvenience is irrelevant. (I have no desire to go to work for the RNC.) If they are right, in fact, then it is the indulgence of conservative judicial activism by the likes of Long that makes it harder for us to make the case against the liberal variant.