Phony Precedent

It sounds like quite a threat. Republicans who see a double standard in Democratic senators voting against Samuel Alito’s confirmation — even though the Republicans overwhelmingly gave their votes to President Clinton’s two Supreme Court nominees, Ruth Bader Ginsburg and Stephen Breyer — predict that when tables are turned and a Democrat holds the White House, Republican senators will no longer repeat their past deference to the president’s nominee.

The usually thoughtful conservative site, Powerline, summarizes the right’s view of this supposedly dramatic change:

This was basically a straight party line vote — 90 percent of the Democrats voted no. The vote changes the “rules” for confirming Supreme Court Justices. Under the Alito rule, Senators will vote against highly qualified nominee for no reason other than that they expect the nominee to rule contrary to their preference on major issues. Under the Alito rule, the president’s party, in effect, must control the Senate in order for the president to have top-notch nominees of his choice confirmed. When the the president’s party doesn’t control the Senate, only compromise nominees acceptable to both parties can expect to be confirmed.

It was objectionable for the Democrats to have changed an understanding of the Senate’s “advise and consent” role that has worked reasonably well for 200 years, or so. The new approach will probably produce more mediocre Justices, selected not for their intellect, fairness, or other judging skills, but because they haven’t offended anyone. But the process is not irrational, and in some ways it makes more sense than its predecessor in a world where the Court exercises as much power as it now does. In any case, the important thing is to have one set of confirmation rules that applies to both parties. Thanks to the Dems, we now have a new set.

The author of this post (Paul Mirengoff) leaves an important fact out of his analysis: It’s nothing new.

When Clinton was president and Republicans ran Congress, he won votes for Ginburg and Breyer (and most of his appellate choices) by vetting them first with then-Judiciary Committee Chair Orrin Hatch. History shows that Hatch steered Clinton away from other nominees whom he said Republicans would not support, saving Clinton and those nominees the embarassment of rejection. But the GOP majority’s influence was, nonetheless, decisive.

Nowadays, Republicans like to say Clinton’s two successful Supreme Court nominees are as far to the left as Alito was to the right. But back then, my recollection is Breyer and Ginsburg were defined as moderate liberals, distinctly to the right of equally qualified judges with pure liberal pedigrees (i.e. Judge Stephen Reinhardt).

Ginsburg’s past executive role with the ACLU is now routinely cited, but back then, conservatives were impressed that Ginsburg agreed with them on the flawed legal reasoning behind Roe v. Wade.

It is rarely the case that the party in power in the Senate gives a courtesy vote to a Supreme Court nominee from a president of the opposing party, when that nominee is seen as an ideologue.

When one party runs everything, you sometimes get sharp, ideological choices like Sam Alito or John Roberts under Bush 43, Clarence Thomas under Bush 41 and Antonin Scalia under Reagan; or Thurgood Marshall under Lyndon Johnson, Arthur Goldberg under JFK, and William O. Douglas under FDR. When the presidency and the senate are in the hands of opposing parties, you tend to get less ideological choices like John Paul Stevens (Ford), Harry Blackmun, Lewis Powell and William Burger (all Nixon).

The only recent occurence of a party holding power in the Senate voting to approve an ideological choice made by a president of the other party was when a very liberal Senate voted in 1971 to confirm Richard Nixon’s choice of Justice William Rehnquist, a hard-core conservative. Today, I don’t think something like that would have happened.

The regrettable Democratic break from tradition was the filibuster threat. A successful filibuster would have set a perilous precedent, one that clearly could have roadblocked worthy Democratic court nominees in the future. Common sense prevailed this time; enough anti-Alito Democrats rejected John Kerry’s foolish call for a filibuster to kick that bad idea down the road a ways — where it will hopefully roll into a storm drain and be washed out to sea.

Folks, I don’t care how much you hate W or any other president. You don’t want a president to have to cut the kind of deals required to round up 60 votes to put a justice on the Supreme Courts — unless you want to pay for a lot more bridges to nowhere.


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