In light of recent events

I am going to hold off on responding to your posts about reforming the government. Also, I am just going to leave well enough alone in regards to your comments on TPMCafe, as I agree enough to not warrant further comment. I will briefly note that one thing I find particularly disgusting about TPMCafe is the air of haughty knowingness that pervades the discussion there. Yuck.

In your last post, you brought up Holmesian conceptions of democracy, but I instead want to focus on Holmesian conceptions of the law. I think it is imperative that the left begin to develop a legal philosophy that makes sense. I say this because I just turned off the CNN there and they were interviewing Robert Bork as to O'Conner's legacy. Bork said that she lacked a judicial philosophy and proceeded in typical right wing fascion (see it is "fashion, but looks like fascist, because that is what most of the modern right truly is, dang I am witty this morning. Really hungover, and dang witty!) to disparage Justice O'Conner's legal opinions. So in response to Bork, I thought it would be good to open up debate space on what is the a good counterweight to the right's, and specifically Bork's, "dead" constitution, originalistic philosophy. Naturally, given my predilection for good ol' OWH, I turned to his opinion in Missouri v. Holland. (just for you law nerds out there: 252 U.S. 416 (1920), although I don't have the pinpoint citation) In discussing the 10th amendment to the Constitution, Holmes states: "We must consider what this country has become in deciding what that amendment has reserved."

I think that lays a foundation for a modern left wing constitutional jurisprudence, except maybe change "amendment" to "constitution". I am also sure that many other people (read as "smarter" people) have arrived at this point and moved past it. However, I think your aforementioned "fetishization" of the constitution and the right's commitment to originalism shows that Holmes' point has not be political powerful, at least not recently. So I am proposing that we begin to discuss ways in which we can make this whole business politically viable. That said, I guess I will reluctantly put down the long desired read of the Central Asian history that I have, and dive headfirst into The Common Law. To paraphrase the Red Stripe advertisements: Hooray! Law!

Also: My predictions for the coming nomination fight(s)
First, I think it is highly likely that Renhquist will also retire soon. Which gives us 2 nominations to work with. Faced with 2 nominations, Bush is going to chortle with glee in that Roscoe P. Coltrane way, while Rove giggles on like Boss Hogg, except not cool. It needs to be stated outright to all national democratic party persons and our 2 maybe 3 readers:

YOU CANNOT TRUST THE REPUBLICAN LEADERSHIP OR WHITE HOUSE TO DEAL IN GOOD FAITH WITH YOU DURING THE COMING NOMINATION FIGHT.

That said, how will this proceed? How should the left proceed? Well, I heartly agree with Reid's proposal of a list of Republicans that the Democrats in the Senate will support for the high court. That said, don't expect Bush to pick one. Based solely on their track record, and his speech this morning, Bush will nominate whoever he wants and will not listen to ANY "advice" from the Senate, all the while DEMANDING the Senate's "consent". So Bush is going to nominate some nutjob. So in light of a likely Rehnquist resignation, how should we proceed? Give Bush a pass on one of his nutjobs, and fight the other one like hell, all the while proposing moderate republican or conservative democrats as alternatives that would make the fight "all just disappear."

We can win this. (and by win I mean preserve the current ideological balance of the court)