Redstate

and see how much good it does you.  any discussion about what Republicans will do when a Dem is in office is pure speculation.  the reality is - based on what has actually happened - the Bork hearings represented a turning point.

from that point on - the Dems played by their set of rules, and the Republicans play it the old way.  this nomination shows every sign of taking this trend a little further down the road.

the REAL problem is that the Supreme Court has become a type of Super Dooper Legislative Body.  precisely the problem which the Originalist/Constitutionalist judicial movement is trying to solve.  but it will take decades - at best.  

Until Roe v. Wade is overturned.  Scalia has pointed out numerous times that Roe v. Wade, and its ilk, have made the Court a political institution and the American people have figured that out, so they have politicized the process.

When Roe is overturned and the judges who overturn it maintain a hard line to weed out the illegitimate approaches that spawn decisions like Roe, then people will no longer insist that the Court attempt to solve all their problems, and they will no longer care who gets put up there.

As for Alito, his nomination is actually a baby step in the right direction as the first Republican nominee since Bork to have a judicial record on a lot of tough issues.  That's the first nominee out of the last 6!  Once you get someone with a record confirmed (and confirmed rather handily), then getting someone like Janice Rogers Brown confirmed becomes more possible.

how to respond to this concern except to say that I suspect that the complaint over the role of "ideology" in these debates serves as shorthand for something like, "There are divergent judicial philosophies, but they are of secondary importance."  And I don't think that we really believe this, but are merely terrified of the consequences of openly admitting, and acting upon our conviction, which is that philosophy matters, and matters because competence just isn't enough. In other words, what we are doing is evading the question of whether the boundaries of acceptable judicial philosophies should be narrowly or widely circumscribed by pretending that there is some neutral ground of judicial competence, independent of philosophy, that is all that matters, or at least is what matters most.  

Trying to downplay "ideology" is like trying one's hand at resolving substantive questions by focusing on technical matters and formalities.

I realize that this is an "Ann Coulter" bomb-throwing type comment - but clearly, in the way they operate policitally - Democrats have no morals.

The next time there's a Democrat president, and he nominates somebody like a Breyer or a Ginsburg - if the Republicans start playing the ideology card - the Democrats will scream bloody murder.

And that's assuming that the Republicans will have the guts to actually do it - which I don't think they do.

Look at Harry Reid saying that Rove should resign. This despite the fact that Rove has not be indicted, nor convicted of any crime. So much for "innocent until proven guilty" - and that doesn't even begin to look at the hypocracy of the demand -- considering all of the ethical and legal problems that happened in Clinton's White House. And no Democrats were demanding for people to resign.

It's good of you to worry - but the Republican's will never stoop to that level.

My intuitive sense is that even with a future Democrat in the White House, Senate Republicans will not oppose qualified nominees based on ideology. As odd as this sounds, I don't think ideology matters as much to Repub Senators as it does to Democrats. If it were, then for one thing, you'd actually see some more interesting legislative initiatives coming out of them. So on that basis alone, I would say you have little cause for worry that the judicial-approval process will become permanently debased.

Now I think it's clear to all that the Democrats for their part have fully embraced the "third test" that you describe, and this simply means that good Conservative jurists will always have a hard time getting placed on the Federal bench. While SCOTUS gets all the headlines, there is also a lot of pipeline-development that goes on: dozens of appointments to lower courts during a President's term that are subject to largely the same political pressures. I think the fact that the Republicans have chosen to fight the ideological barriers in Alito's case will position us well to fight and win the less visible but also important smaller battles in the coming years. It's a sea change of enormous importance, and long overdue.

Republicans had a chance during the Clinton administration to follow the same tactic and oppose Justices Breyer and Ginsburg on philosohpical grounds. They instead voted based on the judges qualifications and gave both nominees over 90 votes. With this gesture toward the old criteria of ethical, qualified judges being approved regardless of judicial philosophy, Republicans showed principle over politics.

Bunkum.  

With regard to SCOTUS nominees, Clinton looked for consensus candidates who were supported by Republican legislators so as to avoid nasty partisan confirmation fights.  For example, according to Orrin Hatch, Clinton nominated Breyer after discussing with him a list of potential nominees that included Bruce Babbitt, a much more controversial choice.  At the time, Hatch was the ranking minority member on the Judiciary Committee, and recommended Breyer, who was not being seriously considered by Clinton up to that point.

It had nothing to do with the Republicans "showing principle over politics", and everything to do with a President who committed himself to working in a bi-partisan fashion, and garnering support from the minority party in the Senate.  How many people here believe that Bush called Pat Leahy to discuss either Miers or Alito before making his nomination?  

My guess is that Ralph Reed and James Dobson had more influence on the Alito nomination with Bush's handlers than any elected politician in either party.

In any case, if you want to talk about partisanship and principle with regard to Judicial nominations, ask why the aforementioned Orrin Hatch refused to give hearings to more than a dozen nominees who had received unanimous "well-qualified" ratings from the the American Bar Association during the Clinton years if not for ideology and partisanship?

In all, Hatch refused to give hearings to more than 60 Clinton nominees.  Unlike Bush, Clinton did not grant these people recess appointments.  The Democrats did not threaten to toss aside years of parliamentary precedent in the Senate and "go nuclear" or any of the other BS partisan hack tricks that Republican leadership threatened after the Democrats held up the nominations of a grand total of 5 out of 100 Bush judicial nominees.

This is a point we passed a long time ago--on the order of twenty years or so. I don't know where so many people get the idea that opposition to judicial candidates based on their ideology is anything new, or a trademark of Democrats, but it's simply not true--quite a few of Clinton's nominees were opposed as being "out of the mainstream" or "judicial activists", the latter term being a widely-abused code word for ideological opposition.

Neither is it true that Republicans have taken the high road in their opposition to Democratic nominees. This bit about every nominee deserving an "up or down vote" is a clever frame, I'll grant, but it's pure fiction: between blue slipping nominees, voting against cloture, and a number of other tactics with far less history and procedural legitimacy than the filibuster, the Republican Congress ensured that more than a quarter of Clinton's nominees never got that "up or down vote"--and that obstructionism is a large part of why President Bush had so many vacancies to fill.

It may amuse some to claim (and be techincally correct) that Republicans have never used the filibuster the way Democrats have, but this is not an honest approach to the question of whether the nominees ever received an up or down vote in the Senate, and the end result is still that President Bush has enjoyed the approval of a higher percentage of his nominees--with Democratic support--than any other president in at least the last 30 years. The biggest contributor to this success was the Republican elimination of the blue slip rule that served them so well during Clinton's terms in office.

So while I share your concerns about the deepening politicization of the SCOTUS, let's not pretend that things are other than how they are, or that this isn't already a bipartisan failure. We have enough problems to try and sort out without rewriting history.

I was trying to identify your six post-Bork stealth nominees- Ginsburg, Kennedy, Souter, Thomas, Roberts, Miers. Anyone missing? Wasn't there a rejected pick for the seat Souter now holds?

And then I thought, has this ever happened before in history??? That a party would systematically avoid putting its own partisans on the Federal bench for a nearly twenty-year period? This has been one long victorious period for the Left.

They are trying to highjack the entire Senate even as we discuss this.

There is reason behind their madness, and taking power is the reason.

I excerpted an entire e-mail from the DNC about this  in my diary because I believe we are facing what will either be the meltdown of the DNC as we know it, or their victory by way of a political coup.

I tend to think we will win, but I always want the good guys to win.

Ginsburg was no consensus candidate. The Prez was respected. She ahs proven to be what she was thought to be going in: an extremely liberal hack imposing ACLU dictat on America.

The false claim you make implying Republicans filibustered judicial candidates is just that.

clinton never missed an opportunity to twist Republicans and no rewrites of history will change that.

I know that there are both conservatives and liberals who are wedded to specific judicial philosophies with a conviction that accepts whatever results may come of the principled application of those philosophies. But I suspect that the vast majority of us understand--on a visceral, unconscious level if not completely well aware--that it is a rare man or woman indeed whose philosophies and notions of right and wrong do not contribute to their rulings on issues where the law does not clearly speak. I do not believe any such person currently sits on the SCOTUS. And I therefore do not believe it is in any way unreasonable to be opposed to a nominee because you disagree with them ideologically. The dismay of so many social conservatives over every revelation of progressive thought from Miers demonstrated clearly that this is a trait shared by both left and right--and I don't know that it's a bad thing.

I realize that this is an "Ann Coulter" bomb-throwing type comment - but clearly, in the way they operate policitally - Democrats have no morals.

Right.  This from a person who is in lock-step with a party that has turned cronyism and gutter politics into a new art-form.

Need someone to head up disaster management in Post-911 America now that the head of FEMA has moved on to work for Halliburton?  Well, why not hire his college roommate who works as a judge at horsie shows?

Need to put the screws to a vocal critic of our Iraq policy?  

No problem.  Let's just have Karl Rove and scooter Libby out his wife as a CIA operative.

Bottom line is that Bush gave his word when he said that he would fire anyone who was found to be involved in divulging Valerie Plame's identity to the press.  Karl Rove has admitted his involvement, and if Bush is a man of his word then he needs to follow through with it regardless of whether Rove committed a crime.

Sidenote:  This wouldn't be the first time that a man named George Bush fired a man named Karl Rove for leaking information that was published by a man named Bob Novak.  George Bush Senior did it in 1992.  

now this sounds like someone who should watch what they say around here...

as tolerant, flattering, and intellectual as the phrase "partisan hack" may be, this sounds less like mature dissent and more like aggravated assault on anything or anyone right of left. get em.

seriously, salvador is a troll. thats the second post in a matter of minutes that ive read that bashes anything to the right of left. boot him.

As someone who supported Miers I'm rather indignant over this post because I felt that most of those who opposed Miers (at least here) did so because of her ideology (or suspected lack thereof).

Shame! Shame!

Name one anti-Roe judge that Reid would recommend for bipartisan approval.

I don't enjoy people tracking mud into my home.  Don't let the door hit ya...

The vast majority of concern about Ms. Miers was her lack of qualifications.  You might note that the original article points out that ethics and qualifications have always been hurdles for nominees.  A complete lack of judicial experience must be overcome with other unassailable qualifications.  Miers may or may not have had enough qualifications to pass, but it was definitely a valid question on both sides of the aisle.  That is significantly different from ideology.

I oppose all of the committee tactics that happened under Clinton.  I was not a writer then (nor was I old enough to have a deep understanding of the issue) but it seems wrong to me for the same reason.  I do think it was different for the majority party to use their majority power to negotiate on appointments (which was the justification for the committee antics) than for the minority party to stop judges who have majority support from being placed on our courts.  I think both are bad practices, but one is decidedly worse than the other in my view.

Further, Republicans did not use those tactics on either of Clinton's appointees.  It looks like two just-as-qualified judges appointed by Bush will receive far fewer than the 90+ yes votes that Clinton's nominees received.

Banning for ideological reasons will take place only in the cases of fundamentally anti-American ideologies. Nazis, Islamists, Communists and racists are unwelcome at redstate.org. Any other person of basic good sense and goodwill, regardless of party, is welcome to participate

Not sure what was said in either post that was worthy of banning unless responding to a comment asserting that "Democrats have no morals" with some examples of major morality gaffes on the part of R leadership constitutes "fundamentally anti-American behaviour".

This is a good example of one of the main problems with the Republican party today.  Too many folks just simply cannot tolerate disagreement, much less dissent.  I'll grant you that a good way to ensure loyalty is to make sure that the footsoldiers aren't exposed to alternative viewpoints -- and you are certainly well within your rights to do so -- but isn't it just a little, well, gutless to ban someone for disagreeing with you?

Further, Republicans did not use those tactics on either of Clinton's appointees.

Maybe that's because Orrin Hatch recommended both of them.

Quoted from Hatch's auto-biography:

"President Clinton indicated he was leaning toward nominating Bruce Babbitt, his Secretary of the Interior, a name that had been bouncing around in the press

"I told him that confirmation would not be easy. At least one Democrat would probably vote against Bruce, and there would be a great deal of resistance from the Republican side.  I explained to the President that although he might prevail in the end, he should consider whether he wanted a tough, political battle over his first appointment to the Court.

"Our conversation moved to other potential candidates. I asked whether he had considered Judge Stephen Breyer of the First Circuit Court of Appeals or Judge Ruth Bader Ginsburg of the District of Columbia Court of Appeals. President Clinton indicated he had heard Breyer's name but had not thought about Judge Ginsberg.

"In the end, the President did not select Secretary Babbitt. Instead, he nominated Judge Ginsburg and Judge Breyer a year later, when Harry Blackmun retired from the Court. Both were confirmed with relative ease."

Well you only get one chance to make a first impression and shouting "swiftboat" at a Kerry rally would kinda cast doubt that you are there for the policy paper.  

Senator Hatch basically said, I know you will appoint a liberal, Babbitt won't get through, but here are a list of some liberals that can get through.

So where is Leahy's list of conservatives? Here Mr. President, Janice Rogers Brown won't get through, but choose Luttig, Owen or Alito.

4 Senators (Mel Martinez, Mike DeWine, Mike Crapo and Lindsey Graham) and Sonia Sotomayor of the Second Circuit, Edward Prado of the Fifth Circuit, and Ricardo Hinojosa, a Texas district judge.

Farewell and ado to ye fair Spanish ladies...For someone with no post record you're very well "cut and paste" equipped.

as noted above Ginsburg is anything but a concensus candidate, having worked for the ACLU which is one stepped removed from Stalinist dicta, (even though she is from Columbia I still dont like her).

As for your data (5/100) you are quite mistaken. In fact Bush II has the lowest percentage of confirmed justices out of any president in the last 50+ years. If you are going to try to inflitrate, at least have the courtesy to do it with facts, not fiction, which unfortunately is a problem that most liberals seem to have, seperating fact from fiction.

Reid's list, not Leahy's?

From NRO

Last week Bush was clearly consulting with the Senate over breakfast with Democrats Harry Reid and Pat Leahy as well as Republicans Arlen Specter and Bill Frist. While the press portrays Democrats as being cooperative by offering Bush the names of conservatives who they regard as reasonable and who would meet with their approval, their suggestions were less serious than first meets the eye.

Democrats suggested the names of three sitting judges: Ricardo Hinojosa, Edward Prado, and Sonia Sotomayor. The problem is that in the same breath that the Democrats acknowledge that Bush will appoint a conservative, the Democratic senators may be only ones that might view their suggestions as conservative. The contrast in the helpful advice that Orrin Hatch offered President Clinton in 1993 could not be more stark.

Hatch's criteria were simple. He suggested liberals who "were highly honest and capable jurists and their confirmation would not embarrass the president."

So Democrats suggested morederates not conservatives.

They met together with Bush, Frist and Specter (majority and judiciary ranking members) for the consultation.

(memory aided by this : http://en.wikipedia.org/wiki/Potential_Bush_administration_nominees_to_the_
Supreme_Court_of_the_United_States)

Sonia Sotomayor is a Clinton appointee

I banned him for repeating Democratic talking points on a site that our readers and users pay for themselves.  This is a Republican site.  If that bothers you, go elsewhere.

We welcome all who don't insist on dragging mud into our house.  Repeating Democratic talking points is the internet equivalent.

Republicans worked with Clinton to allow him to appoint acceptable, qualified liberals.  When Reid tells the President that Brown is off limit but Luttig, Roberts, Garza, and Alito are okay this will be a comparable situation.

We will get to see in the Alito vote if Dems are persisting in placing an ideological litmus test on Supreme Court nominees.  Republicans have not done that yet.  This will probably be the last straw that will force them to follow suit in the future.  That is my worry.

I don't see a problem with using ideology as one criteria.

Let's say the dems put up an avowed communist, but one who has Alito's qualifications.

Should such a person be confirmed to the Supreme Court just because of his qualifications?

Ginsburg getting 90+ votes was a mistake in your view?

it is a rare man or woman indeed whose philosophies and notions of right and wrong do not contribute to their rulings on issues where the law does not clearly speak.

We have to remember that the S.Ct. is not a court of errors.  It does not sit to correct wrong decisions that come out of the circuit courts.  The S.Ct.'s purpose is to correct and shape the law.

Explicitly, the S.Ct. is a court of policy.  And outside of Roe, outside of all the big name issues, it simply matters who is on the court making legal policy.

http://democrats.senate.gov/dpc/dpc-doc.cfm?doc_name=fs-108-2-197

I'm not sure what you mean.  My point is that there are just limits to what is acceptable regardless of the qualifications that the person carries.

It is considered bad form to show up with a different screen name after being banned. Off to The Pile™ with you, Salvador.

I meant to note that the the Supreme Court rules almost exclusively on areas that are not clear or that require resolution due to a split in state or circuit courts.  

And the cases that the Supreme Court hears are at the complete discretion of the Court.  So, it only makes law when it wants to.

Well, as a liberal, I probably would have disagreed on whether Ginsburg was acceptable, but I would have considered your objection to her judicial philosophy legitimate.

Isn't that what most conservatives have been calling for on this site? A debate over judicial philosophy based on a significant record by the next Supreme Court nomination?

But nominees should be chosen by the President who won the national vote.  The Senate's approval is to make sure the President doesn't abuse that power by appointing cronies, those who are unqualified, or those with ethical issues.

FWIW, Ginsburg's support for prostitution and polygamy as Constitutional Rights probably puts her farther "out of the mainstream" than any other nominee to the SC.  But she was a qualified and ethical judge.  And many Rs made statements such as "I disagree with her judicial philosophy and I would never had chosen her, but the President won the election and there is nothing disqualifying about her."

If 30-40 Ds made that same statement about Alito, we would be on the path back to the old criteria of ethics and qualification.

I would encourage you to not link to Democratic talking point sites.  Independent sources are much more credible.

For example, here is a source that endorsed John Kerry last year:

<img src="http://www.economist.com/images/20050423/CUS743.gif">

If the image doesn't come up, just plug it in the url.

Using the partisan filibuster for any nominees is a new precedent.  The fact that majority-supported judicial nominees are not allowed to become judges is fundamentally unjust.  

The Senate's approval is to make sure the President doesn't abuse that power by appointing cronies, those who are unqualified, or those with ethical issues

Yes, but that's not all of it.  The Senate is there in part to make sure that the President is generally restrained in his choices.  Take a look at Federalist 76.  

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration.

It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing.

Yes, I know I'm leaving out a bit of language from the quote, but I don't think that it's necessary or dispositive.  The Senate is there in part to ensure that the President isn't making a bad decision.  

Furthermore, in Federalist 76, Hamilton argues that having an assembly of men nominate individuals is bad because:  

[t]he choice which may at any time happen to be made under such circumstances, will of course be the result either of a victory gained by one party over the other, or of a compromise between the parties. In either case, the intrinsic merit of the candidate will be too often out of sight. In the first, the qualifications best adapted to uniting the suffrages of the party, will be more considered than those which fit the person for the station. In the last, the coalition will commonly turn upon some interested equivalent: ``Give us the man we wish for this office, and you shall have the one you wish for that.'' This will be the usual condition of the bargain. And it will rarely happen that the advancement of the public service will be the primary object either of party victories or of party negotiations.

This reasoning applies equally to individuals and to groups though.  It should not simply be party victory or uniting the base of the party that determines who sits on the bench.

Senators should consider whether the person is acceptable to the people, and part of that consideration should be the individual's personal beliefs precisely because those beliefs do make a difference in how the person will judge a case.

Kudos on that, you're being more consistent than is common.

I actually would be perfectly fine with ideology as an announced criterion for SCOTUS.  If that means neither Scalia nor Ginsburg make it onto the court, so be it.  I prefer Roberts and Breyer to Scalia and Ginsburg anyway.

More accurately, I'd like to see 2 conservatives, 2 liberals, and 5 moderates on the court at all times.  That way all arguments would be explored in dissents and concurrences, and the majority victories wouldn't depend so much on the arbitrary preferences of one swing justice.  

But it srikes me as absurd that ideology is not a recognized and acceptable criterion for extremely important judgeships.  Ginsburg and Scalia were both well-qualified.  They rule differently.  Why must the Senate pretend to only notice that they're both well-qualified?  What's wrong with demanding that SCOTUS nominees be broadly acceptable (read: unworthy of filibuster) to at least 60 senators?  It's a constitutional court after all; if it takes a 3/4 vote to change it, why should it take only a 50%+1 vote to dramatically change how it's interpreted?  

I'd welcome ideology as an explicit consideration.

Democrats suggested the names of three sitting judges: Ricardo Hinojosa, Edward Prado, and Sonia Sotomayor. The problem is that in the same breath that the Democrats acknowledge that Bush will appoint a conservative, the Democratic senators may be only ones that might view their suggestions as conservative.

The problem with quoting the National Review Online is that they assume that their readers won't fact-check their editorials.  Sotomayor was appointed by Bush Sr.  Hinojosa was appointed by Reagan.  Prado was put on the Federal bench by Reagan and appointed to the 5th Circuit by Bush.

They may or may not be conservative in the James Dobson, "The only real conservatives are the ones who want to overturn Roe vs. Wade" sense, but they are every bit as reasonable as Hatch's suggestions of Breyer and Ginsburg.

Ok, although I'd suggest that this view isn't really grounded in specific language in the constitution, or as noted above, the federalist papers, but fair enough.

Although I would put to you this hypothetical: Bush has a really bad day and picks Lawrence Tribe or Cass Sunstein as the next justice. I know the example is far-fetched, but bear with me. No doubt they are emminently qualified, although, from your writing, you no doubt do not share their judicial philosophy. You are saying you would have no words of objection to that?

I disagreed with the Dems 'borking' Bork because they exaggerated claims against him (sadly, as they are doing with Altio too). However, I do think reasoned debate about judicial philosophy is hardly beyond the pale. I mean, if Republicans are excited about the pick because of Alito's judicial philosophy (in addition to his obvious qualifications), then if Democrats disagree with his philosophy, why should their contribution to the debate be declared illegitimate (which is different than wrong)?

As for your data (5/100) you are quite mistaken. In fact Bush II has the lowest percentage of confirmed justices out of any president in the last 50+ years.

It wasn't 5 out of 100, it was 198 out of 225. Clinton was 200 out of 246. Bush Senior had 192 out of 250 confirmed and Reagan had 163 out of 185 confirmed.

In short, Bush has had the highest percentage of Court nominees get passed of any President since Reagan.

The Washington Post reported on Oct. 2, 1968: "In a precedent-shattering rebuff to the Administration, the Senate yesterday refused to cut off the filibuster against consideration of Abe Fortas to be Chief Justice."

link

Bush Sr. appointed Sotomayor to the District Court and Clinton elevated her to the Court of Appeals.

Still old enough to remember a time when Republicans used to say things like "I may not agree with you, but will defend unto death your right to say it". Of course, that was way back when Republicans would say things like "Better Dead Than Red.".

Go figure.

that Rove has neither been indicted nor convicted of any crime to date.  And as a matter of fact, even Libby has not been idicted for the key "crime" at issue in the Plame investigation: outing Valerie Plame. He has only been accused of obstructing justice and related charges, but not actually outing a federal agent. And lest anyone miss this point, he has yet to be convicted of anything.

Besides, in the grand scope of presidential scandals, Libby is pretty small potatoes.  We just saw an administration leave office in which the President himself was impeached, and many of his key allies (including a Governor and a judge) were sent to jail.

Re: "If Democrats oppose Alito strongly for ideological reasons, Republicans will adopt the same tactic when they are out of the White House. So all 45-50 pro-life Senators will have free reign to oppose judicial nominees that support Roe v. Wade just as many pro-choice Senators use a Roe litmus test for their votes."

I think you are absolutely right. The Democrats have every reason to expect a victory in one of the next two presidential elections. But unless someone repeals the provision in the U.S. Constitution that gives two senators to each state, the GOP is likely to be in control of the Senate when that happens, and if not in control, then at least in possession of a healthy minority (say, 47 to 49 seats in a worst case scenario).  They will be more than able to scuttle any Democrat nominee if they want. But the question is, should they? This process has already been politicized almost to the point of deadlock.  If it weren't for the large GOP majority in the Senate (55 seats) there would be absolute deadlock.

What we really need is a grand truce whereby the Dems promise to stop this nonsense in return for a promise of reciprocal behavior from Republicans to do the same in the future.  The GOP also needs to make it clear that the Dems CAN NOT expect such reciprocity if they choose to filibuster Alito.

... for reasons exclusively having to do with ethics, which is why he resigned under a cloud from the Supreme Court the next year.  Oh, and I hope you are aware that he was already a sitting Associate Justice of the Supreme Court.

To further make your reference even more inappropriate, Fortas was opposed by a bipartisan majority of both Democrats and Republicans. Which is precisely why LBJ withdrew the nomination immediately afterwards.

Pay attention, our dear guest. This is a GOP website. Repeating DNC talking points we've heard and taken down a hundred times before only means that we'll soon be rescinding your welcome.

for many years and both parties. I think it is inevitable. The process involves the President and Senate, politicians all. They all have their constituencies, who lean on them very heavily and effectively when it comes to the SC. The constituencies of both sides focus on outcomes rather than qualifications. How many of those who say Souter should not have been placed on the Court are asserting that he wasn't qualified?

I think the best hope for the future is that the politicians will negotiate prior to the nomination with their constituencies and with each other, openly taking ideology (and qualifications) into account.

I guess we're gonna have to black hole his ISP.

Ginsburg is pretty stinking liberal.

Breyer is pretty liberal, although less so than Ginsberg.

How much you want to bet that none of the suggested names have an originalist philosophy?  As badly as the dems want to paint that philosophy into the mianstream, the facts are that the majority of the GOP wants people with that philosophy, we voted for the president, because we were promised justices with that philosophy.

Thank you very much, but no thanks on anyone Leahy finds appropriate, I strongly suspect we would be getting somebody to the left of Kennedy or O'Conner, and two of those on the court is two too many.

As for who appointed them-sorry, but that doesn't fly for me.  Souter was appointed by Bush Sr. O'Connor by Reagan, and Kennedy by Reagan.  All have turned out to be less than expected.  Kennedy was a consensus candidate, and while he isn't Ginsberg, more Kennedy's on the court are the last thing I wanted, when I voted for Bush.

The dems lost the presidential election, and they lost control of the senate-and their definition of moderate and mainstream are pretty far to the left.

If you want to make the case that they are "conservative" then please actually link to cases they have decided, not who appointed them.

although I strongly suspect that if the dems retake the senate, and there is a dem in the white house, that the rule allowing for fillibusters will be scrapped and the dems will have forgotten just how important they once thought preserving the rule would be.

But I think Scalia is right, Roe has basically turned the SCOTUS into one more place to play politics, but in this game the stakes are high.

But I suspect the days of voting for a nominee simply because they are qualified and are ethically sound are over.

This is a very valid concern. The Republicans are late waking up to the fact that this is the way the game is going to be played in the future.

The left has already effectively moved the line for an acceptable nominee.  Hence we have Ruth Bader Ginsburg, who is as hardline left as they come, yet approved by a large margin, versus John Robert, who is a stealth nominee and may or may not be conservative, yet is approved by a much smaller margin.

If we continue to play by the old rules, the left has won.

He's been banned many times, and is about to be permanently excised. Sorry about that.

is that the Republicans of the future faced with a Democrat nominee will just roll over again like they did with Breyer and Ginzberg.

What you say I said is not what I, in fact, said.  

it's in the dictionary. Reece, you're a logic-chopper extraordinaire. Ask a more pointed question.

Karl Rove admitted nothing of the sort.  Someone asked if someone worked there, he said he heard that to.  Perhaps he read that in Joe Wilsons Who's Who.

Maybe everyone who was ever investigated should resign all government jobs.  Let's start with Hillary Clinton

Re: Name one anti-Roe judge that Reid would recommend for bipartisan approval.

Anyone here remember Harriet Miers?

Re: That a party would systematically avoid putting its own partisans on the Federal bench for a nearly twenty-year period?

Of the GOP nominees listed in the above post, how many were Democrats? Sure, some of them (notably Souter) "grew" once on the court, but initially at least they were believed to be solid Republican-oriented judges.

disingenuous, to say the least. Sure, there may be a couple of people out there for whom Miers' slender resume was indeed THE issue, but the huge brouhaha kicked up on this site and on NRO, etc. over her all boiled down to whether or not she was an originalist and would be a relaible vote to overturn Roe. can anyoen here claim with a straight face that had Harriet Miers been possessed of a long paper trail similar to, say, Scalia's or Thomas', and been famed for her pro-Life work, she wouldn't have been the toast of the GOP and had a solid phalanx of supporters shouting for her confirmation to this day with but a few minor harumphs over her lack of previous judicial experience?

And as for the Dems opposing Alito because of ideology how is this contemptible when it is not contemptible for the GOP to support him (or the President to appoint) because of ideology? Pots and kettles are both ideologically black on this matter, but so far Maximos is the only one on this thread who has owned to this fact.

How often has a party gone out of its way to nominate judges without a clear paper trail of support for the party's ideas? We've been playing not to lose rather than to win. To that extent, Adam's fears as articulated in the OP have indeed been activated, at least on the Republican side.

The contrast with Clinton is stark: he felt not the slightest compunction about nominating two very strong ideologues.

 ... was considered a center-left nominee at the time and (if you read her opinions) you'll see that they largely reflect a center-left judicial philosophy.  She was not and is not "an extremely liberal hack imposing ACLU dictat on America."

perhaps in the sense of being in the center of the left. I'd buy Breyer as center-left, but Ginsburg is just plain, downhome left.

to the Kos Koolaid Kids, but don't try that here.

She ahs proven herself to be as unfit to sit on SCOTUS as the ACLU is to proclaim they are for civil rights for all Americans.

Adam's statement was:

anti-Roe judge that Reid would recommend for bipartisan approval.

Ms. Miers was not a judge.  We had no clue what her judicial philosophy was, we had no clue what her stance on Roe was, we had no clue about any of her positions, hence the opposition.

The point was already passed with Miers.

Ideology's a factor now.  We just have to live with that.

If Justice Ginsburg is in the 'center-left' of the judiciary, what is your definition of 'center'?  

I'd bet that there wouldn't be much consensus here with whatever you come up with if it puts her near the mainstream.

By your logic I could equally call Scalia a 'center-right' Justice.  It just depends on where you sit.

that is accurate in the least. The overwhelming reason she was opposed on this site was because of her perceived lack of qualifications.

"partisan filibuster for any nominees is a new precedent"

Figure out which word you ignored.

I concur that the President should take judicial philosophy into account.  It is his role to select the nominee.  The Senate's job is to make sure he doesn't abuse that power.  It is a check.  If they want to actually select the judges, they should run for President.  If a nominee chosen by the President is ethical and qualified, they should be approved.

Identify a Ginsburg opinion -- any opinion, from any field -- that supports your assertion that Ginsburg is not a center-left justice.

Again, identify the opinion(s) that are the basis for your claim.  

"possessed of a long paper trail"

It could have established her qualifications.  Otherwise, there was nothing to distinguish her from thousands of others lawyers other than the fact that she was close to the President.  

Furthermore, as I state upthread I think the President is right to appoint people of a certain judicial philosophy and that is part of the national debate when we select a President.  The Senate's job is to make sure the power is not abused.  Thus they have the power to stop corrupt choices or unqualified choices of the President.  They should not abuse that power and think they have the right to dictate what judicial philosophy a judge should have.  If they want that power, they should run for President.  It's really a separation of powers issue.

Is, I presumably, the same as your definition of center:  those within the center of the judicial mainstream.

I would call Scalia at textualist, which is inherently neither left nor right, who prefers the conservative outcome.

Incidentally (and I don't recall who made this point), I think that Breyer -- with his appreciation for foreign law -- is far more radical than Ginsburg.

When Clinton sought the advice of Hatch, Hatch suggested both Ginsberg AND Breyer. It's in Orrin's book.

At any rate, Bork was qualified? I'm just curious: what was the breakdown of the Senate vote on the Republican side of the aisle?

"It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. In addition to this, it would be an efficacious source of stability in the administration."

The Senate should make sure the person is qualified and ethical.  They should prevent "unfit characters" and cronies (or "from personal attachment").  But nothing there points to the belief that a judicial philosophy should be grounds for opposition.

The party of the President that appointed the judge does not matter one whit.  GHWB appointed Souter.  Is he conservative?

The way they rule is the only criteria by which we evaluate judges.

"why should their contribution to the debate be declared illegitimate"

We should have the debate.  And then Ds should follow their R counterparts example during the Ginsburg hearings and say "I disagree with her philosophy strongly but she is qualified and the President's choice so I will vote for her."

If you want to have judges of a different philosophy, you run for President and win.  That's one of the roles of the President.

As to your Bush example, I think at this point we are on the tipping point.  If Alito is opposed on ideological grounds alone (which seems to be the only issue so far), then I think Rs will start using an ideological test as well.  Many in the grassroots want to but our Senators have restrained themselves thus far.  I think a 4th SC nominee being opposed based on ideology would seal the deal.

utterance. And we both know that any case I pick is going to be wrong because you've said she is center-left, ergo, she's center-left. So I don't see what good it does either of us to go down that roda.

Be serious, here. Ginsburg is center-left in the same sense that I'm center-right. She was a hard core, near radical, lefty when she worked for the ACLU and there is no evidence that she has moderated beyond what it takes to get the best decision she can hope for through her vote.

I'd argue that Justice Ginsburg's opinion in Cutter v. Wilkinson, which upheld limited government involvement in religion under the Establishment clause and made it tougher for inmates to bring suit, to be reflective of the general direction of her policies.  (No, she didn't join in Thomas's concurrence, but I'm arguing that she's a center-left justice, not an originalist or textualist.)

The whole debate was about her qualifications.  She had no judicial experience.  She had no record of having a judicial philosophy (which is different from disagreeing with a specific one).  Her questionnaire responses were not acceptable to many Senators.

It may not have been enough to lead to a no vote, but there were legitimate questions about whether she was more qualified than thousands of other lawyers.  And there was a question of whether she would have gotten the nod if she wasn't so close to the President.  Those are legitimate worries.

The only way Orrin Hatch could "refuse to give hearings" to Clinton nominees is if he was Chairman of the Senate Judiciary Committee. The Chairman always comes from the MAJORITY party in the Senate. The Democrats could not have forced the issue using the "nuclear option" since they simply didn't have 50 votes in the Senate.

Over the past few decades, the Senate MAJORITY party has sometimes blocked confirmations of judges nominated by a President of the opposing party. Republicans did this to Bill Clinton, and Democrats did this to George W. Bush in 2001-02. This is part of the Constitutional "advice and consent" prerogative of the Senate--a President faced with an opposing Senate MAJORITY will have to compromise with at least some of them.

But filibustering judicial nominees is an unfair and unconstitutional usurpation of power by a MINORITY of Senators. None of former President Clinton's judicial nominees were ever filibustered by a Senate MINORITY, but were voted down by a Senate MAJORITY. The Democrats in 2002-03 were the first Senate MINORITY in the history of the United States to successfully block judicial nominees using the filibuster.

The Constitution says that the President nominates judges with the "advice and consent of the Senate". This means the MAJORITY of the Senate, not 3/5 of it (the Founders did write super-majority requirements into the Constitution elsewhere--the fact that they didn't here implies that they meant a simple majority).

The so-called "nuclear option" is not a "BS partisan hack trick", but an effort to re-establish confirmation of judges by a majority of the Senate, as intended by the Founders.

If liberals or Democrats really object so strenuously to judges appointed by President Bush, the Constitution shows them the way--they need to win elections in the Senate.

My suggestion that you identify a case is based on the belief that you haven't actually read any of Justice Ginsburg's opinions -- or, at least, not read them closely -- and have no first-source knowledge of her judicial philosophy.  You have a belief but no evidence to support it.  (Your argument based on her past membership in the ACLU is a prime example of a classic ad hominem, in which you attack Ginsburg's present jurisprudence based on her based associations.)

I suggest that you at least read Ginsburg's opinion in Cutter v. Wilkinson, and perhaps spend some time with other Ginsburg opinions, before you (inaccurately) label her a hard-left justice.  

I think the problem is that you still don't understand our ideology.  We believe (and I use we as shorthand for those of us Rs who wanted the Scalia/Thomas judge) that judges should strictly interpret the constitution, not bend its words to mean what they want them to mean.

In other words, we oppose abortion because we believe it is wrong.  But we oppose Roe v. Wade because the SC declared that it was unconstitutional to limit abortion and we can't see that in the Constitution.

We oppose the "living constitution" because it leads to rulings like Kelo.  It leads to rulings that it is cruel and unusual punishment to execute a 17 year old (though it wasn't just a few years ago.)

Failure to properly rule according to the plain language of the 1st Amendment led to the finding that McCain Feingold was not unconstitutional, though the President, Congress and American people all recognized that it was.  

Our ideology is two-fold.  We vote for our reps based on our worldview of the proper place of gov't and its obligations.  We want our judges selected based on the idea that We the People will decide what our laws are and we don't want 9 robed masters reinterpreting them to mean the exact opposite of what they mean.

As to HM, people opposed her thin paper trail and lack of experience precisely because we couldn't evaluate whether or not she was an originalist.  (btw, I was chillin', but I understood why the non-chillin' people were non-chillin'.) It was not due to Roe, but the fact that Souter exists.  We don't want another stealth, no-paper-trail nominee getting a lifetime appointment and using it to write laws that we aren't allowed to vote on.

If Bush gets through his term without any of his Supreme Court nominees (Alito or others to come) getting defeated due to Democratic ideological opposition, I and most other conservative commentators will argue that Republicans should stick to their principled position on this issue.

On the other hand, if the Dems actually succeed in another Borking, there may be a point of no return passed where Republicans abandon their unilateral position.

This debate has nothing to do with ideology, at least not in the political sense of the word.  This debate is about faitfulness to the Constitution.  Justices Scalia and Ginsburg are different not because one reaches decisions that generally are met with approval by conservatives while the decisions of the other are smiled upon by liberals.  The difference is that Justice Scalia feels bound by the Constitution while Justice Gingburg feels bound by her personal sense of fairness.  That is a far cry from an ideological debate.

Miers was not a judge, and perahspo I should ahve corrected myself on that.

But unless we were being fed a line of bull from the White House she was anti-Roe.

How come when Billy Clinton nominated that ACLU operative to the Supreme Court only three republicans opposed her? This woman comes from the far fringes of left wing ideaologies....and that's without mentioning the track record of the subversive organization she represented.  

the GOP as a whole with its social conservative wing. O'Connor and Kennedy were both solidly Republican; they just weren't on board with the SoCon wing (which, let's be fair, was considerably less prominent in the GOP back when they were nominated.) And even Souter was firmly within the traditions of Northeast Republicanism which was not yet reviled as RINOism back in those days.

but instead of rebutting one partisan source with another (not the economist, but dalythoughts.com who produced the skewed chart), you might want to go to the source (in fact, that's always the best case, one I should've followed initially):

http://www.senate.gov/reference/resources/pdf/RL31635.pdf

basically, W's numbers are so low because the report includes people who were renominated because the democrats used a parlimentary procedure to let their window expire.  You may dislike that but it seems no worse than being able to neg a justice based on blue slips.  Unfortunately it has to be done in bulk, which drops his percentages.  If you want some honest numbers I recommend table 2B or 12.

additionally, your numbers are from December 2003, whereas the one from the democrat's site are more recent (though I can't be sure because they didn't source their info which just bugs me).  But from a quick scan it looks like they data they use is more recent but doesn't include renominated justices.

and the usual dislcaimer about statistics applies

to clarify just one last time: I think it's remarkable and self-defeating for a political party to resort for twenty years to nominating people without paper trails in order to avoid an ideological fight. And I wonder if the historically knowledgeable people on this site can think of another case.

rather than simple competency is a valid reason to support a nominee then it's valid reason to oppose a nominee. You can't have it both ways.

And why not have this public argument anyway? I don't think the originalist camp gains anything at all from trying to suppress its own cause like this. Wasn;t that part of the objection to stealth nominess? Let both sides put up or shut up, and let the American people ultimately determine which side they find the most convicing.

Re: It could have established her qualifications.

LOL. That proves my point. The needed qualifications were not about graduating summa cum laude from Snooty U, nor toiling in the judicial trenches for thirty years thereafter, nor having lots of cute Latinate plaques and awards and plaudits hanging on one's wall. The qualifications desired were all about ideology.

And look, I'm not complaining about that even, just asking for some honesty. For some reason my tolerance for logical contradiction is at an all time low today, so if people are going to support orginalist judges, they need to recognize that that is as much a philosophical position as its oppsoite on the other side of the fence.

Mike Dukakis was wrong after all: it isn't about competency.

But this is the same Administration that claims it is fiscally responsible.  Tax cuts alone don't cut it, in my eyes.

I want proof before I believe things of import.

was nominated because Republicans told Clinton at the time that she would be confirmed. He was going to nominate Cuomo.

Re: In other words, we oppose abortion because we believe it is wrong.  But we oppose Roe v. Wade because the SC declared that it was unconstitutional to limit abortion and we can't see that in the Constitution.

Well, I realize that I have not held forth on abortion for a while (since we haven't had any rabid pro-Choicers hectoring us here of late), but I too happen to think abortion is generally wrong, and I also happen to believe that Roe vs Wade was among the  Court's worst decsion, and it should be overturned.

I am just asking for some candor. There is no such thing as a non-ideological ideology. The Right has an ideology on these matters. The Left has a different ideology. Support your ideology and oppose the Left's because (obviously!) you believe in your ideals. But don't pretend you are opposing the Left's ideology simply because it's an ideology and ideology has no place in politics.

that Leahy would follow Reid's lead on such issues, even if Leahy is the lead Dem on the judiciary committee? Just because Specter doesn't really pay attention to Frist doesn't mean that Leahy wouldn't pay attention to Reid...After all, a lot of Republicans don't really respect Frist anymore.

No, I disagree. Scalia and Ginsburg both are being faithful to what they believe to be the Constituition's mandates. But they are wearing very diferernt glasses when they read the Constitution. This is somewhat unavoidable: no two people will read the same text in the same way.

Perhaps the solution is to avoid people who wear deeply colored glasses of any sort when they read the Constitution, thus giving us a Court of centrists. I don't know though. I would actually like to see a Janice Rogers Brown on the Court, and her equivalent from the Left as well. Sometimes radical views can be right, or at least force us to question What Everyone Knows when Everyone happens to be an idiot.

and is your wont, you attribute your misunderstandings to the lack of knowledge of others or, conversely, your superior knowledge and are seemingly unwilling to believe that anyone who disagrees with you can possibly know anything.

First, I have read several of her opinions and dissents. Your N=1 in support of your point of view is hardly meaningful.

Second, you have already stated she is center-left. I don't know what I could possibly do to convince you otherwise so why would I bother arguing your concept of "center-left" when even a modicum of research establishes in my mind that we don't agree on what center-left is. Especially as you have already told everyone who disagrees with you the same thing: you're an idiot and you haven't read her opinions or you'd agree with me.

Third, there is no ad hominem involved. Her writings and speeches while part of the ACLU were, to a great degree, reprehensible. These were not the musings of a philosopher but the positions of a professional advocate. Those opinions are much more indicative of where she is ideologically than the compromises she makes to help craft a majority opinion.

Neither she nor the White House ever indicated she what her opinion of Roe was. She had some foolish friends in Texas who said she was sure to vote against Roe, but no one else did. She had no paper trail on this issue, which is why her selection was derided on the right as a stealth candidate of unknown dependability.

Yes, we know she supported a constitutional amendment to overturn Roe, but that is not the same thing as advocating a position that a JUDGE should overturn Roe. A constitutionalist who puts a high value on precedent could be firmly of the opinion that a constitutional amendment may be in order, while at the same time deciding that because of the existing case law, Roe itself should not be overturned.

Clinton's aides had approached Cuomo, but he couldn't decided whether to accept. Clinton wasn't going to ask Cuomo without knowing the answer wso it fell through.

Clinton was going to nominate Bruce Babbitt of Arizona, and Hatch told Clinton that some of the DEMS would oppose him.  Hatch then suggested a tried and true liberal who Clinton could accept and would be confirmed because Hatch knew that Clinton had won the Presidency and had the privilege of nominating people of his ideology.

Apparently it's only Republican Presidents that don't get that same consideration.

Leahy voted for Roberts, Reid did not.  So I don't think Leahy gives as much deference to Reid as all that.

And Republicans never like their Senate Majority Leader.  At least they haven't since I've been alive.  The Majority leader has to make deals, compromise, keep the trains running.  The Dems are smarter at the politics of the senate than we are, so they usually run rings around us.

We booted Lott out because he was imperious at times, not because of some intemperate words at Thurmond's birthday party.

Everyone sighed in relief when Bob Dole stepped down for his Presidential run (remember Newt calling him the tax collector for the welfare state?).

We don't like our leaders in the Senate much.

From where I sit at this point, Alito looks obviously qualified and not extreme in his judicial philosophy.  He should be confirmed unless something truly surprising comes out in the hearings.

As a Democrat, I do believe that elections have consequences and a tilt in the general philosophy of the SCOTUS is an expected outcome of party shifts in the White House.

All that said, to some extent judicial ideology is fair game.  If a nominee were to show little or no respect for stare decisis (not overwhelming respect either) that should be a valid point against confirmation.  Similarly, if a nominee were to publicly adovate overturning prior SCOTUS rulings through speeches, decisions, writings or testimony, that should be a disqualifier.

Other than that, should a President pick a qualified candidate, not being prejuidiced by obvious cronyism, their nominee should generally be respected and confirmed.

First of all, I apologize if it came across like I was trying to restate my opinion as if it were yours. What you wrote made something that I have rarely been able to articulate clearly click in my head, and I went with it. If it seemed otherwise, it was poor writing.

That said, while upon first rereading I did not see where we substantively disagreed, I think I see now where the confusion came from. I suspect that when you spoke of philosophy mattering, you were speaking of one's approach to jurisprudence, and that the pretense of "neutral ground of judicial competence" of which you spoke was intended as support for originalism, rather than--as it seemed--a criticism of the notion that judges of any sort of can completely divorce their jurisprudence from their worldview.

If this is the case, then what I said still stands--but as respectful dissent, rather than assent.

Its not over when Roe V Wade is overturned.

Pro-choice voters will seek an overturn of the overturn. Pro-life voters will try to impose their will upon individual states.  It will just become a hotter issue.  

This issue divides the nation much like slavery did.  Both sides claim the moral high ground.  There is very little negotiation between them that takes place.  Pro-life and pro-choice supports vilify each other as being less than human.

Osama Bin Ladin prayed for the states to war on other states.  How far are we from answering his prayers?

First, I have read several of her opinions and dissents. Your N=1 in support of your point of view is hardly meaningful.

If so, you should have no trouble pointing me to one that shows (in your view) a hard-left viewpoint.

Second, you have already stated she is center-left. I don't know what I could possibly do to convince you otherwise so why would I bother arguing your concept of "center-left" when even a modicum of research establishes in my mind that we don't agree on what center-left is.

What silliness.  We haven't even gotten to a point where we can disagree as to the meaning of "hard" vs. "center" left, because you haven't given me anything -- save here prior membership in the ACLU -- to explain what you mean by "hard" left, much less why you label her as such.  

BTW, I don't think we necessarily will disagree as to the definition of hard v. center left.  But, of course, I can't know that since you refuse to provide any evidence to support your position -- other than the fact that she worked for the ACLU (which I address below).

Third, there is no ad hominem involved. Her writings and speeches while part of the ACLU were, to a great degree, reprehensible. These were not the musings of a philosopher but the positions of a professional advocate. Those opinions are much more indicative of where she is ideologically than the compromises she makes to help craft a majority opinion.

Then pick a dissent or a concurrence, if you like.  Or, if you think her advocacy on behalf of the ACLU is relevant, identify the ACLU speech or position that you find reprehensible.  (If you're going to point to her proposal on age of consent laws, I suggest you go back and read Professor Volokh's last entry on the subject.)

IOW, provide something -- some evidence -- to support your position.  I don't doubt the sincerity of your belief; I just don't understand why you hold that belief.

Ok, I think I understand where you're points in this post:

1.  Democrats are being unreasonable in wanting someone who is not anti-choice or at least has not consistantly ruled against reproductive rights, whereas republicans are perfectly reasonable demanding someone with a long pro-life history
   
2.  The tactics used by republicans in the past to block judges is bad but is in the past now and democrats should just put it behind them.  Democrats should also ignore the rule changes the republicans made after clinton left and Bush was elected that make it harder for the minority to have a say in the process without a fillibuster
   
3.  The Democrats are being unreasonable for not suggesting exactly the judges you would like, even though they agreed on Miers with Bush and have suggested several other conservative justices.  Despite the fact that Clinton consulted with Hatch and built a consensus there, that doesn't count because breyer and ginsberg are basically far left communists.
   
4.  The all powerful Democrats created the need for the stealth nominee, and not the fact that the majority of the country does not want to see Roe v. Wade overturned

did I miss anything?

and is your wont, you attribute your misunderstandings to the lack of knowledge of others or, conversely, your superior knowledge and are seemingly unwilling to believe that anyone who disagrees with you can possibly know anything.

I've yielded to your superior knowledge more than once in the past, which suggests against that this is my "wont."  Moreover, I'm not suggesting that you can't convince me that my impression of Ginsburg as "center left" is incorrect.  I'm merely stating that, having read some of her opinions and remembered her nomination, I believe that she is best described as a center-left justice; certainly, she is not Brennan or Marshall or Douglass.  That opinion can change if the evidence shows otherwise.  

ever yielded to anyone on anything, I missed it. Not saying that is a bad thing.

We just aren't going to agree on center-left. If you want center-left I offer Breyer (essays into foreign law, notwithstanding) or Souter.

And when President Hillary Clinton nominates another Ginsburg who is outwardly pro-Roe and has other extreme views, they will probably face 40-55 no votes from Rs.  I wish that wasn't the case.  But if Ds are going to use an ideological litmus test for confirmation, then I can't really begrudge Rs from following their lead.

What about her record showed that she had a strong grasp of Constitutional Law?  She didn't have 15 years of experience judging cases based on the Constitution and Supreme Court precedent.  She didn't argue cases in front of the Supreme Court and thus have to work with the intracacies of the law in that regard.  She may have been qualified, but the argument is much more difficult than it is with Roberts or Alito.

I hope the President does nominate originalists.  But that is his choice, not mine.  He promised to do so and I took him on his word.  He does not get to nominate his friend who has no Con Law experience and expect not to get questioned about it.

That was the standard Rs applied.  I'm afraid that standard is about to be trampled for a good long while if Alito is opposed on ideological grounds.

But my ideological ideology is a better ideology than any other idealogs idiology, which is so ridiculous as to be ideologically non-ideologicalous.  Or at least that's my ideology.

My only quibble.  Does that mean any judge who supports Brown (which overturned 48 years of Plessy precedent) should be disqualified?

I think Roberts answer was ideal.  He insinuated that Roe was a wrong decision (as 6 current SC Justices believe).  Then he pointed out that being a wrong decision is not enough to overturn.  You must also way the impact of changing past law with the imapct of fixing the wrong decision.  He didn't say where he fell in that weighing of issues.  I don't know how he will vote on the issue, but his methodology was sound, reasonable, and superb in my mind.  He was not prejudice toward accepting all bad decisions nor tossing them willy-nilly.

Again, thanks for reaching across the Big Ditch.

Republicans have been burned too often nominating "stealth" candidates (like Souter). Only a nomination with a record of standing against the courts usurping legislative authority was going to withstand scrutiny this time.

Miers might or might not have been such a candidate. But since liberals only appoint liberals, conservatives can't take a 50-50 chance. And after George H, "trust me" no longers works with the conservative base.

At least not paleos. It is a process of combining reason, and observation to arrive at a prudent (the original meaning of 'politic') decision. It has a set of guidelines and proccedures, but always allows for correction because human beings make mistakes. Hence the preference for established principles is only a principle, not a law. It allows for experimentation at the non-dangerous perifery of society. Ideology does not allow for this exception, and hence is to generally be rejected as a philosophy for any governing party.

Communism holds that there is no private property. The Constitution explicitly protects private property from governmental takings (hence the conservative objection to the unconstitutional decision by 5 of the current justices). Anyone who swears to uphold the constitution and simultaneously swears they are an avowed communist has lied. Therefore he is unqualified.

QED.

and I presume we agree tha they do, then one reason to introduce ideology into the confirmation process is so that people can know something about the who the President, and by inference, Republicans support for the federal bench beyond that they are qualified and ethical.

These debates should not just be about scoring points, but are also opportunities to educate people about what things like "nominate judges like Scalia and Thomas" really mean.

If the people decided that they don't like originalists, textualist, or strict constructionists, then they can go ahead and vote for candidate who pledges to nominate critical legal studies judges who will bring a Foucaldian reading to the Constitution.

since indirection only engendered misunderstanding.

Judicial philosophy matters.  It matters, more than just about anything else, whether we are going to have, on the Court, men and women who subscribe to one form or another of originalism and/or textualism, or men who subscribe to some version or another of Breyer's living constitution shinola.  The former will mean that we will have a government of laws; the latter will mean that we will have a government of robed masters at the beck and call of shifting elite opinion, which is to say, no rule of law at all.  

Competence, then, is necessary, but not sufficient.  Is Breyer competent?  Ginsburg?  Of course.  But those espousing their philosophy have no legitimate place on the Court precisely because that philosophy is inimical, and unalterably so, to the Constitutional system of representative government under law that we imagined we had in America.  To even pose the question is to suggest that it is a matter of indifference whether we adhere to fundamental law or "make it up" as we go along, to suggest that it does not matter whether a man practices Christianity or moloch-worship so long as he just calls himself a Christian.  

As I suggested, it is only a combination of fear and a want of conviction that, in this case, judicial philosophy is more important than Senators getting along with one another, that prevents the admission that, because the role of the Court has become so enormously overinflated, on the answer to this question hinges the character of the nation itself.

We disagree on substance, but then that's politics for you.

As a simple separation of powers proposition, I'm surprised that you like your position.  You're offering near-complete control over additions/promotions in the Judiciary to the Executive, with the Legislative branch confined to blocking corruption, cronyism, and obviously unqualified nominees.  Sure, control of the Executive branch does more or less rotate, but the Legislative branch is always better at representing the full breadth of American opinion than any one Executive could ever be.  And even setting that argument about which branch better represents American opinion aside, having power over the composition of the Judiciary be fully vested in only the Executive branch just seems worse, from a distribution of power perspective, than having the Executive and Legislature cooperate to constitute the Judiciary.  The Judiciary that emerges from such cooperation would be more mainstream, more in tune with the will of the polity, would have drawn review and approval from more sources, and due to all this would be more legitimate, than a strictly Executive-created Judiciary.

Given that we're both working off of a skeletal Constitution, I'd prefer to interpret "advise and consent" robustly, and I think you're choosing to interpret it narrowly.  Your interpretation is textually legitimate (as is mine), but I see external reasons for prefering mine.

I'd be interested to hear your external reasons for thinking that limiting the extent and type of Legislative involvement in the constitution of the Judiciary is good.  And why having only the Executive constitute the Judiciary is good.

Thanks.

"Conservatism and a Strong Executive" is an interesting subject.  I can imagine significant disagreement in the conservative camp on that subject, based around the "Strong Leader" idea versus the "Human Nature Is Bad and Corruptible, And Power Must Be Spread" tradition, both of which are tied to historical conservatism.

Cheney and his ilk may well believe that because human nature is weak, strong leaders are needed.  But that's a little weird to my mind.  How on earth would such leaders get off thinking that humans were weak and corruptible, but they themselves, you know, were not.

But I digress.

My intuitive sense is that even with a future Democrat in the White House, Senate Republicans will not oppose qualified nominees based on ideology.

If they don't, they'll split the Party.

The overwhelming view now, a full 10 years later, was that the GOP Senate should have risen in solid opposition to Ginsberg.

If they try that again, it'll be the end of this 'Big Tent' GOP we have now.

More accurately, I'd like to see 2 conservatives, 2 liberals, and 5 moderates on the court at all times.

Please define what a "judicial moderate" is, and then further explain why such a thing is desirable.

We concur.  The debate should happen.  The hearings should happen.  The points should be made.

And I hope at the end, the Senators of all stripes can say "I disagree and I hope the American people see why this nominee's philosophy is wrong for the country, please vote for us next time and you'll get X instead of Y.  That being said, it is the President's right to appoint this nominee.  They are qualified and ethical and I will vote to confirm."

Ginsburg getting 90+ votes was a mistake in your view?

Yes. A gigantic one.

Your view seems to be that you can separate "ideology" and "judicial philosophy".

I'm not really sure you can.

In any case, opposition on the grounds of "judicial philosophy" is completely legitimate. That doesn't mean you Filibuster when in the Minority. But the Senate GOP shold have voted en banc (heh) against Ginsberg. Breyer? Not so much (he wasn't an obvious extremist). But Ginsberg's (legal/SCOTUS) views were obviously incompatable with the judicial philosophy of most/all of the Senate GOP.

So they should have voted "No".

In retrospect, not doing so has proved to be a mistake.

I'm afraid that standard is about to be trampled for a good long while if Alito is opposed on ideological grounds.

Unlike you, I'm not sure that's a totally "bad" thing.

What is bad is the concurrent distortion of people's records (mostly (all?) from the Left) that goes along with it.

But I can see no reason why Judicial Philosophy shouldn't be part of the equation, or why members of the Minority Party can't/shouldn't vote "No" against Opposition nominees even after they've lost elections.

(Again, I'm drawing the line at the Filibuster - that tactic is wholly illegitamte when used by a minority on purely ideological grounds...)

This thread has grown so much, I'm sure my response to those posters spurred by my original comment will be lost ... but here goes.

To clarify the one of six comment, they are: Kennedy, Souter, Thomas, Roberts, Miers, and Alito.  I thought it would be clear I was counting him because as I said, he was the first of six to have a record, so of necessity he was in my original count.  So, there were five without paper trails, and one (Alito) with a paper trail.  As was said, nearly 20 years of "not to lose" candidates.

I didn't count Ginsburg and Breyer obviously because they were appointed by a Democrat, but they are also the contrasting group--each had clear and long records on controversial issues.  Although Kennedy had been a federal judge for (I believe) about ten years prior to his nomination, his record was undistinguished and uncontroversial.  In truth, his record on the Supreme Court is pretty much borne out by his record on the Ninth Circuit.  For instance, he had more than one opinion on that court that was supportive of homosexual rights.  He has continued that support by writing terrible opinions like Lawrence v. Texas and Romer v. Evans.

Thus, Alito is the first Republican nominee to the Court in nearly 20 years to have an intelligible record on tough issues, even if in some cases what this means for his future rulings is still unclear (as compared to how predictable Janice Rogers Brown would be).  This is an important step forward because part of the terrible practice started by Democrats opposing Bork was to distort his record unfairly.  With Alito, the President has said, "Go ahead and try.  You won't get away with it this time."

The real step of bravery, and hopefully the next step, would be to fill a future vacancy with someone like Janice Rogers Brown or Edith Jones.  There would be no need to distort their records because each has written pretty clearly about their philosophical opposition to many of the prizes the Left holds so dear.  

And I think your view will hold out.  I think it would be better to let the President choose on judicial philosophy since it is his appointment.  And Senators could make sure he doesn't abuse that power.  Nevertheless, it seems we are about to go fully into an era where Senators are co-equal with choosing judges.

presented a valid, clear position.  Regarding, Brown and Plessy.  We can probably always find a specific case in point but I do think that if a nominee pre-judges a prior ruling without being presented a specific case to consider then that is imprudent even if the precedent is pretty clearly erroneous or even disreputable.

I probably overstated by saying it was an obvious disqualifier but it is a reason to consider a nay vote imo.

I'd say a judge who says that Roe was wrongly decided is within the "mainstream" of the legal profession.  The debate about overturning is one that should not be prejudiced.  We definitely agree on that.