In 1960 the Democrats passed a resolution against election year SCOTUS appointments. As the author points out, the GOP opposed it (“hypocrisy goes two ways”) but the majority carried the day – as it should now.
Kevin D. Williamson reminds that it was the Democrats who introduced “the contemporary approach to Supreme Court confirmation hearings — as partisan bar brawl — with the nomination of Robert Bork by President Ronald Reagan.”
Jim Geraghty is right to point out that Republicans need make no argument other than the ones Democrats such as Charles Schumer were making at the end of the Bush years. They need do nothing more than Senator Barack Obama did in filibustering Sam Alito. There are plenty of other examples.
The ur-example, of course, is the case of Robert Bork. The Democrats’ craven, despicable, lying campaign against Bork announced the arrival of Supreme Court confirmation hearings as bare-knuckle political brawls. There was no question that Bork was well-qualified for the position – he was one of the great legal minds of his time. Democrats simply did not like his view of the law and the Constitution.
Bork’s “ideology,” like Scalia’s, consisted of a belief that the law saws what it says and nothing more. Scalia often is described as a “conservative,” but he was a “conservative” who sided with flag-burners, because that’s what the law demands, and with various and sundry unattractive criminal defendants, because the law was on their side, too. He treated the First Amendment the way he treated the Second: as a series of words with a particular meaning.
The Kagans, Sotomayors, and Ginsburgs of the world operate under no such restraints. Kagan lied about her views on gay marriage in order to enact them from the Supreme Court. Ginsburg will find left-wing results on any question regardless of what the law says. Sotomayor is still doing her “wise Latina” routine.
The belief that the Constitution says whatever it is that Democrats want it to say at any given moment is illegitimate as a legal philosophy for Supreme Court justices. Democrats long ago established that ideological disagreement is a perfectly valid reason for blocking a Supreme Court appointee. Senator Schumer spelled out the political case for preventing a lame-duck president from filling a vacancy. Senator Obama demonstrated the technique.
Your rules, gentlemen. Your rules.
David French agrees and adds:
I concur wholeheartedly with Kevin, after watching the character assassination of Robert Bork, it’s simply impossible to take seriously Democratic demands for senatorial deference to President Obama’s Supreme Court pick. The first lesson from Bork’s confirmation battle was that the “old rules” no longer applied – to the extent they ever truly did. Senators can and should impose constitutional litmus tests on judicial nominees.
Charles Cooke agrees with Obama. 2006 Senator Obama, who he quotes thusly:
As we all know, there’s been a lot of discussion in the country about how the Senate should approach this confirmation process. There are some who believe that the President, having won the election, should have the complete authority to appoint his nominee, and the Senate should only examine whether or not the Justice is intellectually capable and an all-around nice guy. That once you get beyond intellect and personal character, there should be no further question whether the judge should be confirmed.
I disagree with this view. I believe firmly that the Constitution calls for the Senate to advise and consent. I believe that it calls for meaningful advice and consent that includes an examination of a judge’s philosophy, ideology, and record. And when I examine the philosophy, ideology, and record of Samuel Alito, I’m deeply troubled.
I have no doubt that Judge Alito has the training and qualifications necessary to serve. He’s an intelligent man and an accomplished jurist. And there’s no indication he’s not a man of great character.
But when you look at his record – when it comes to his understanding of the Constitution, I have found that in almost every case, he consistently sides on behalf of the powerful against the powerless; on behalf of a strong government or corporation against upholding American’s individual rights.
Jonah Goldberg has “8 thoughts” on Scalia
I’m reminded of this paragraph from a recent piece by Steve Hayes in The Weekly Standard:
The roots of our current discontent lie here. And conservatives are right to be angry. But the establishment does not shoulder the blame alone. As one conservative strategist told us: “Leadership is to blame for never identifying any hill worth dying on,” but critics of the establishment “are to blame for only being interested in dying.”
Well, this isn’t a hill. It’s a mountain. The Republican-controlled Senate should not confirm any nominee for the court this president nominates. The balance of the Supreme Court should become an issue in this presidential election. Let the people price it into the presidential choice before them.
On that note, Ruth Marcus — an often independent-minded liberal — offers some classic concern trolling of the GOP today in her column. She writes:
Finally, a Senate work stoppage would, in fact, be bad for Republicans. In the nation’s capital these days, everything is political, every institution politicized. That may be inevitable and irreparable, yet tables here have a way of turning. One party’s obstructionism ends up hurting it down the road.
Marcus is surely right that tables can turn. What she leaves out is the simple, glaring, fact that the tables are turning on Democrats who’ve been playing outrageous games with the appointment process for a quarter century.
When Robert Bork was defenestrated by Joe Biden, despite Biden’s having said he would have no choice but to vote for someone so well-qualified, he was setting the table for payback.
When Harry Reid pulled the trigger on the nuclear option (on lower court appointments) he was warned that this would come back to haunt him.
When Democrats disgustingly blocked Miguel Estrada from the bench solely because he was a Hispanic, they set the table to be turned. When Barack Obama voted to filibuster Alito, he set the table to be turned.
Cry me no tears now that Republicans are finally putting their shoulders to the table.
The division of blame for the ugliness of these fights is not equal. Yes, there’s hypocrisy on all sides of the aisle as the tables spin around and around. But philosophically this is a world liberals created. They have invested in the courts’ having power the Framers never intended. Their doctrine of the living Constitution has given, in theory, an open-ended warrant for courts to do whatever they want. People lament the rush of money into politics, but that money is made necessary by a government that has evermore control over the economy and peoples’ lives. Similarly, when we turned justices into monarchs, we increased the incentives for people to care much more than they should. If Scalia’s interpretation of the Constitution held sway in the land, the Court and the government would have much less power over our lives. And that, more than anything else, explains why the Left hated him so much.