It has now rather suddenly become the official position on, well, at least part of the liberal wing of American politics. In a post on September 20, I argued that, within reason, Presidents are entitled to get the nominees they choose onto the court. This ensures that the court will, at least to some degree, reflect the choices of Americans in Presidential elections, and that is the primary way that democracy influences the courts. It also keeps the nomination process from breaking down, as it surely would if each side used all its powers to block nominees who did not explicitly endorse their favorite positions. So long as a nominee is not a radical on either side, and has no skeletons in his or her closet, the Senate out to confirm. This is now the editorial position of the Washington Post. [HT to Real Clear Politics].
IT SHOULDN'T BE necessary to write in praise of the three Democratic members of the Senate Judiciary Committee who this week voted in committee to confirm John G. Roberts Jr. as chief justice of the United States. Supporting overwhelmingly qualified members of the opposite party for the Supreme Court used to be the norm, not an act of courage. Yet, set against the general opposition from Democrats to the nomination, and truly intense pressure from interest groups, the votes cast by ranking Democrat Patrick J. Leahy (Vt.) and Wisconsin's Herb Kohl and Russell Feingold took guts. Their votes ensure that Judge Roberts will not take the helm of the judiciary perceived as the representative of only one party, and they guarantee that at least some Democrats -- albeit sadly few -- will have the moral authority to demand Republican support for qualified liberal nominees in the future.
The larger Democratic opposition to Judge Roberts represents a disturbing departure from longtime Senate practice. Of the current members of the court, only Justice Clarence Thomas had substantial opposition. The other seven, including Justices John Paul Stevens and Antonin Scalia, received among them only one no vote in committee; six of them, in other words, received unanimous committee endorsement. The seven received, again among all of them, only 21 negative votes on the floor. In refusing to support an indisputably qualified conservative, Democrats send a message that there is a strongly partisan component of the task of judging -- something those who believe in independent, apolitical courts must reject.
"Apolitical" might be asking a bit much. But the idea of judiciary independence is surely on the mark. The Post sets a rather high bar. In the case of a demonstrably qualified candidate, the vote on the Judiciary Committee ought to be unanimously in favor. That's probably right, and the post shows that not very long ago it was the norm. As is a majority of Democrats on the committee voted no. I'm guessing that a little over half the Democratic caucus will vote no on the floor. That's not terrible, but it does represent a serious breakdown in decorum.
It also represents the difficulty the Democrats have had in finding a coherent strategy. Mark Reynolds of the LATimes notes that:
Among those who said they would oppose Roberts, four — Barbara Boxer of California, Jon Corzine of New Jersey, and Edward M. Kennedy and John F. Kerry of Massachusetts — are from states that in recent years have regularly elected Democratic senators. Roberts' Democratic supporters include Sens. Jeff Bingaman of New Mexico, Tim Johnson of South Dakota and Max Baucus of Montana — states that are Republican-dominated or that have closely divided electorates. [My italics].
Someone else, I lost track of whom, noted that many of the Democrats who will vote yes are in red states and have elections coming up. For those Senators, doing the reasonable thing coincides with their political interest. Hillary Clinton is voting no because she is already in trouble with the emphatically unreasonable crowd at the Daily KOS. She cannot afford to do the reasonable thing.
We note that the Washington Post's standard will make it harder for Democrats to form an effective opposition to Bush's next nominee.
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