A Change in Tactics for Judicial Leftists?

From RedState.com:

Mr. (Justice) Breyer, Lobbyist

With Senators Leahy, Durbin and Schumer already promising new levels of obstruction of President Bush's judicial nominees up to and including a promise to block - sight unseen - anyone the President nominates to the Supreme Court, and left-leaning "scholars" and activists calling for a new Court-packing plan along the lines of FDR's famous debacle, Senator Arlen Specter is providing covering fire for these partisan Democrats by announcing his intention to "review" the judicial opinions of Chief Justice Roberts and Justice Alito to see if they have "complied with" promises he believes they gave in their Senate testimony as to how they would rule on the bench.

***
Senators dragging statements out of judicial nominees and then threatening hearings on whether they kept their promises on the bench should alarm anybody who (unlike Senator Specter) actually gives a hoot about judicial independence or principled application of the law. It's enough to make you rethink why we let nominees testify at all. But that's not the most disturbing aspect of this spectacle. What's even more alarming is that Specter has apparently been lobbied to join in this partisan attack on judicial independence by none other than former Ted Kennedy aide (and now associate Justice) Stephen Breyer:

The idea for a review came to Specter when he said he ran into Justice Stephen G. Breyer at the Aspen Ideas Festival in Colorado .

Breyer, an appointee of President Bill Clinton, drew attention last month for suggesting that Roberts and the conservative majority were flouting stare decisis, the legal doctrine that, for the sake of stability, courts should generally leave past decisions undisturbed.

"It is not often in the law that so few have so quickly changed so much," Breyer said, reading his dissent from the bench to a 5-4 ruling that overturned school desegregation policies in two cities.

Roberts has defended his rulings as applications of "existing precedent."

Specter, however, said Breyer's statement was "an especially forceful criticism of the Roberts court."

"I only noticed it in a couple of cases," Specter said of the court overturning or undermining precedents. But Breyer, in their Aspen conversation, said "there were eight."

As the Wall Street Journal put it:

We hope Justice Breyer isn't kibbitzing the Senate to inquire into why his views haven't prevailed with a majority of his colleagues on the Court. We'll wait for more explanation from Mr. Specter, but he's wading into questionable separation-of-powers territory here.

(Pro-life Blogs calls it an "overt attempt to undermine Roberts and also influence the political process in judicial selections, altogether compromising the separation of powers.")

To say the least.

***
In his desire to control the Court's direction, Justice Breyer has invited a level of interference in his Branch that he would fight to the death were it coming at, say, Justice Scalia's behest. We note too that the mainstream media would be squawking itself hoarse were Justice Breyer replaced by the name "Justice Clarence Thomas."

Justice Breyer has apparently overlooked a new-fangled method of dispute resolution between Justices on the High Court: Talking to his colleagues to discover why they rule as they do, and trying to persuade them to adopt his view. One would almost be inclined to believe that Breyer feels like he's suddenly lost control of the situation, and is now reaching out to the Legislature to help him reassert control. In other words, Justice Breyer is inviting a constitutional crisis to achieve his own political ends.

[More]

(emphasis added)

My Comments:
My, my. This is certainly a change in the usual way leftists go about doing things. Generally, it's leftists losing at the legislative branch who seek out redress from the judicial branch.

Here, however, we have a judicial leftist in Justice Breyer who, now that he has lost control of the debate in the judicial branch, is seeking to have his wounds salved by the legislative branch.

But then, leftists don't really care how much or what part of the Constitution they tread underfoot, or which branch of government aids them in their treading, just so long as they get the result they desire.


UPDATE
I have a feeling that what this fuss is really all about is merely political posturing aimed at Justice Kennedy. Everybody knows that Kennedy is politically malleable - he proved as much with his flip-flop in Casey. What those calling for Congressional "reviews" of recent Court decisions, Senate obstruction of future Bush nominees, and Court-packing plans are really trying to do is convince Kennedy to pull another "switch-in-time-to-save-nine".

We'll know how successful this strategy is in the next Supreme Court session or two, when Kennedy will either swing right or left depending on which way the political wind is blowing.


Previous Pro Ecclesia posts on this subject:
Schumer to Fight Any New Bush High Court Pick

Breyer Advocates Outcome-Based Jurisprudence

"Schumer Doctrine" Back in Play

Justice Breyer Should Be Impeached

Charles Krauthammer on the "Schumer Doctrine"

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