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Saturday, April 23, 2005

A Call for Sanity in Discussing the Judiciary

Former Solicitor General Ted Olson made a persuasive case for both parties to tone down the rhetoric regarding the judiciary this week in this Wall Street Journal article. Email address registration is required. Definitely worth a read.


At 8:28 PM, Blogger andrew golis said...

Great column. Very reasonable, shows the faults of both sides. I'm still skeptical that Democrats can expect Republicans to take the first step: putting up reasonable, moderate, minimally-ideological judges.

Let's keep in mind that this whole thing is really about the Supreme Court. If the Democrats are not able to maintain the filibuster, the Republicans will nominate a right-wing judge to replace Rehnquist. If they do maintain the filibuster, the Republicans will have to do what most Presidents have done- actually work with the opposition party to come to some middle ground (who, of course, will still be a conservative, anti-statist, original intent pro-lifer).

Now, we can argue about what has been tradition, who's at fault, etc. But in the end, what's the system supposed to do? Produce an outcome that represents the wishes of the American people. In this case, which do we think the American people would prefer?

At 10:32 PM, Blogger Jamal Sprucewood said...

This comment has been removed by a blog administrator.

At 12:01 AM, Blogger Jamal Sprucewood said...

I think it's a mistake to say that the process represents the wishes of the American people. That leads to some difficult conclusions.

Does that mean when Rehnquist was nominated that the American people wanted a conservative on the bench? People seem to forget that in the 1970s, he was arguably the most "right-wing" justice on the Supreme Court. Similarly, does that mean that Americans were looking for a liberal when Ruth Bader Ginsburg was nominated by Clinton? What about Scalia and Thomas? How do we explain "moderates" like Kennedy and O'Connor?

Now, true, the process is supposed to represent the wishes of the American people, but how do you discern that in this instance? Only 37% of Americans support the Republican plan to limit the filibuster, but almost 80% believe that all judicial nominees should come to the floor for an up or down majority vote for confirmation. How do we explain this incongruence? That the American people "wish" the filibuster to be maintained is clearly at odds with their desire to have a majority vote on judicial nominees. (http://www.sfgate.com/cgi-bin/article.cgi?f=/n/a/2005/04/22/national/w004620D05.DTL)

Even if this is about how the Supreme Court is to be selected, why use the filibuster on nominees to the lower courts? Why not wait until it concerns a Supreme Court nomination? I think the answer is that a filibuster on a SC nominee would backfire for the Democrats because of the publicity that would surround the nomination to begin with. The filibuster would immediately look like overkill when the Republicans could easily point out that SC nominees have been defeated in the past without the filibuster (a la Robert Bork). Lower court nominees, however, don't attract as much attention.

So, no, I don't think that the filibuster is about the Dems preventing a far "right-wing" SC nomination. If that was the case, where did we get Scalia and Thomas? Why wasn't the filibuster used then? Why didn't the Republicans filibuster Ginsburg and Breyer? Because the rules have changed since then. The filibuster is not about protecting the SC from a uber-conservative nominee, it's about politics - appeasing interest groups who oppose judicial nominees for various reasons that sometimes don't exactly align with what the American people want. And let's be clear, this applies to both parties but it just so happens that the Dems are using it now. Before the filibuster was the "hold" and other various forms of obsruction that were "below the radar." http://www.cbsnews.com/stories/2005/03/25/opinion/main683182.shtml

The common thread in all techniques of obstruction is that they are growing more frequent in use and all are anti-democratic. The best proxy for determining what the American people want, it seems from the past, has been to allow the nominees to get a floor vote, especially when it comes to the Supreme Court. That's how the current court was formed and it generally tends to allow Presidents to nominate like-minded justices (conservatives under Reagan and liberals under Clinton). I don't see how, at least with judicial nominees, there exists another way to determine what the American people want, unless we are to demand that our judiciary be filled with moderates. In any case, confirmation hearings and accompanying punditry blitz have a poor track record of predicting how justices will issue decisions, as an article in the Atlantic pointed out last month.

And let me say that I find it amusing that Democrats say they fear "judicial activism" by justices like Priscilla Owen and Miguel Estrada when at the same time they applaud the decision of the Massachusetts courts in allowing gay marriage. Similarly, one can point to the Republicans decrying the activism of the Massachusetts court and then lambasting the Florida and federal courts for not changing the rules to save Terri Schiavo. Again, it's clear that both parties favor judicial activism when it supports their ideologies and goals. And the Framers thought that the judiciary would be seen as the least "dangerous" branch...

Hope you enjoyed that ramble.


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