Color Me Biased . . .
By Pejman Yousefzadeh Posted in The Courts — Comments (7) / Email this page » / Leave a comment »
But in reading this story, I don't see any particular problem with this:
A planning document for Senate Judiciary Committee Republicans says the nominee will be counseled to avoid disclosing "personal political views or legal thinking on any issue" in an effort to put a focus on qualifications rather than specific issues, including same-sex marriage and the government's treatment of suspected terrorists.
What this goes to is a specific philosophy in the conduct of judicial confirmation hearings--a philosophy that says that nominees should not be put in situations where they might be called upon to prejudge a case that may be before them. To be sure, there is a serious argument over whether a nominee's judicial philosophy should be part of confirmation hearings, but in the overwhelming majority of cases, it has not been and the countertradition has only recently emerged. One might disagree with the Senate Republicans' philosophy, but there is nothing particularly underhanded or sneaky about it. On the contrary, Republicans have been quite open about saying that the philosophical leanings of a nominee should not be at issue. They were more at issue for Republicans when President Clinton was doing the nominating but it is kind of hard to tell one side to unilaterally disarm and then ransack the intellectual reputations of people like Clarence Thomas and Robert Bork, now isn't it?
By contrast, the following is entirely underhanded:
Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate. But Senate Democratic aides said they will focus for now on bipartisan consultation and not publicly prejudge the nominee.
They don't even know who the nominee will be. No one does. And yet, apparently, the groundwork is being set to accuse anyone the White House nominates of being "ideologically extreme" and then invoke the standard "not enough documents" line. This isn't a philosophical issue. This is--the last sentence notwithstanding--utterly disingenuous and a prejudging of whoever the nominee is that should be repulsive to fair-minded people.
We are going to hear alot about "judicial temperament" in the coming days. Perhaps someone should raise questions about "senatorial temperament" as well.
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Color Me Biased . . . 7 Comments (0 topical, 7 editorial, 0 hidden) Post a comment »
Some of us never saw the deal as all that bad. While some were stewing about the 'mavericks,' others were cheering the confirmation of some good judges, and pleased with a split between the Democratic leadership and some of the moderates.
It helps Republicans in the Senate a lot when both sides have their moderates splitting, instead of just the Republican side having that problem.
I was mixed on deal at first, but once I realized that it undermined Reid as much as it undermined Frist, I warmed up to it considerably.
If there's been any 180, I think it's all in perception.
Fundementally, it is a political process, and it goes all the way back to the Rutledge nomination in 1795.
More recently, look at the Clarence Thomas nomination -- he is a judicial benchwarmer who consistently votes with Scalia, and who has never shown great judicial temperment. He was nominated not because he was a conservative, but because he was a black conservative -- and this would make his replacement of Thurgood Marshall more palatable to the Dem controlled congress.
Politics, plain and simple.
Bush has promised to nominate someone in the mold of Scalia or Thomas -- and don't doubt for a moment that he will find someone like Scalia or Thomas with a personal story that will try to cloud the issue of philosophical leaning.
I'm a libertarian (with a lower case 'l') -- I don't want another Scalia or Thomas on the bench because I am far too worried about the government intrusion into personal liberties. I will happily give to the People for the American Way and any other group than can dig up the dirt on such a nominee, and who have enough clout to get it into the news to have some chance of destroying such a nomination -- even if I disagree of PFAW on most other issues.
It's simply politics.
If the founders hadn't intended for the judicial nomination process to be subject to politics, they wouldn't have given the Senate the role of "advice and consent".
in trying to pin down a nominee's philosophy is that no two court cases are identical. You may be able to pin them down on how they would rule for a given set of facts, but that will only help you with that set of facts.
For example, who would have guessed that Breyer would be in the majority both AGAINST allowing the 10 commandments display in Kentucky and FOR allowing the 10 commandments display in Texas?
If a Senator had pinned him down in his confirmation hearing on 10 commandment issues, they still wouldn't have been able to predict this outcome.
The attempts by the left to pin down a nominee's philosophy will be strictly to try and paint the nominee as being bigoted and biased. Their questions will be attempts to smear the nominee rather than reach some understanding. They will try to show that the nominee does not agree with them about their hot button issues such as abortion and gay marriage and then do a Ted Kennedy smear to assert that such disagreement equates to wanting to force women into back-alley abortions and to promote gay-bashing. They will be wrong, and they will know they are wrong, but this is what they will attempt.
That statement indicates that you know very little about the Court. Thomas actually votes w/ Scalia less often than Rhenquist or O'Conner. His written decisions are also usually very different in analysis from Scalia's, and indicate a very intelligent jurist. You may disagree with his decisions, but you have bought into the liberals' lies that Thomas is not smart and is somehow Scalia's "boy". I wonder why you would think such a thing.
while you ponder the fates of Myers, Saad, Kavanaugh and Boyle (never mind Pickering, Kuhl, and Estrada).
In the absence of the deal, we wouldn't be wondering if the "deal" would hold -- the nuclear option would already have taken the filibuster off the table. In the absence of the deal, all of those judges you're so proud of would ALSO have been confirmed -- thanks to the nuke option.
Really, the ONLY differences between the "deal" Senate and the post-"nuke option" Senate are these:
(1) Instead of their current snowballs-chance-in-heck of confirmation, given the deal-makers' willingness to throw them under the bus in return for some face time on Meet The Press ("I SAVED the Senate! I'm the GREATEST!") -- instead of that, in a post-nuke-option Senate maybe Myers, Saad, Kavanaugh, and Boyle would have had a fighting chance at confirmation.
(2) The social lives of the Senators are still status quo ante -- Kennedy and friends call the R's Nazis and Eichmanns and Pol Pots, while the R's smile and accept that as the price of "comity" and "deference" and "making a fourth for golf".
(3) Instead of the pins-and-needles "will Sen. Foghorn Leghorn (D) consider Nominee So-And-So's nomination an 'extraordinary circumstance'?" and "if the 7 D dealmembers agree to a filibuster, will Sen. Self-Important PressHound (R) disagree, AND support the new nuke option?" and "Will Frist ALSO be able to corral the usual suspect RINOs like Spectre and Warner who WEREN'T dealmembers -- or will he have to play whackamole again?" Instead of all that -- we'd KNOW: the only question would be "Can Nominee X achieve 51 votes on the Senate floor?"
But NOOO, we had the all-Holy all-Wise DEAL.
We're so lucky.
In short, I'll let you guys get away with this pro-Deal back-patting AFTER you manage to acheive ALL of the positive results that the nuke option would have given us: all 7 of the filibustered appellate judges (I'll punt on the gone-forever Estrada, Kuhl, and Pickering), plus the 2 newly nominated ones, plus strong strict constructionists/originalists for EVERY single SCOTUS opening during the remainder of W's term, with no nonsense about "maintaining the all-holy ideological balance of the Court; the DEAL would break if we replaced squishy O'Conner with ReturnOfScalia".
Fundementally, it is a political process, and it goes all the way back to the Rutledge nomination in 1795
Who remembered Rutledge was rejected until O'Connor resigned? Is this straight from the DNC hive or was it filtered anywhere first?
Let's look at some history:
He was a Presidential elector in 1789 and Washington then appointed him as Associate Justice of the U.S. Supreme Court, but for some reason he apparently served only a short time. In 1791 he became chief justice of the South Carolina supreme court. Four years later, Washington again appointed him to the U.S. Supreme Court, this time as Chief Justice to replace John Jay. But Rutledge's outspoken opposition to Jay'sTreaty (1794), and the intermittent mental illness he had suffered from since the death of his wife in 1792, caused the Federalist-dominated Senate to reject his appointment and end his public career.[emphasis added]
So Rutledge was confirmed for the Supreme Court once, and then was re-appointed after a mental collapse, and after outspoken political partisanship, and it was only then that he was rejected for being both mentally ill and outspokenly political.
Are not Scalia and Thomas pretty consistently rated highly by informed libertarians?
If it weren't for all the wool, I would be looking for sharp teeth and pointy ears.
All the commentary on whether it was all up to John McCain, or Lindsey Graham, or even the old bulls, Byrd and Warner - but if you check the article and the attributed quotes, it seems the man who breaks the log jam is Senator Nelson (D-Nebraska).
He may yet become Zell Miller without the charming twang. I just don't want to know his views on duelling.
PS - if this is accurate, it's also amazing how quickly "the deal" has spun a 180 into the GOP advantage. I wonder if K. Rove had anything to do with this? (Just planting a seed)