Let's Have This Fight

E. J. Dionne editorialized in WaPo Should a temporary majority of 50.7 percent have control over the entire United States government? Should 49.3 percent of Americans have no influence over the nation's trajectory for the next generation? Those are the stakes in the coming fight over the next Supreme Court justice. The much-maligned "outside groups" preparing for battle over President Bush's choice deserve credit for openly acknowledging this struggle for power.... That means that the most important questions for senators to ask a nominee have to do with his or her philosophy. It is preposterous to rule such questions out of bounds. It's also hypocritical.

Would EJ feel the same if a Democratic President was about to nominate liberal judges/

Paul @PowerLine blogged because President Bush obtained 51 percent of the vote in 2004 ("a temporary majority," Dionne calls it), he should not control the entire United States government for the next generation. This argument fails at several levels. First, the confirmation of one, two, or even three Supreme Court Justices by a president whose majority is temporary is most unlikely to confer control of the Court for a generation.

The Dems were always famous for over exageration.

The Court is like an archeological dig. Most (but not all) presidents leave one or two judges of their choosing on top of the prior layers, and together these layers comprise the Court for a while. The real question is whether President Bush will become the first twice-elected president (in my memory, anyway) not to leave Justices of his choosing on the Court. Second, Dionne's argument fails the same test that trips up nearly all Democratic arguments on this subject -- it was never applied when Democrats were in power. Did anyone suggest that President Clinton could not appoint liberals to the Court because he had failed to obtain a majority of the votes

No, as indicated earlier

(I guess Dionne should call Clinton's margins "temporary pluralities")? Did anyone say that Kennedy should not be permitted to appoint liberal Justices? Not that I recall; and if someone did, that person was ignored as Dionne should be. As always, the Democrats want to change the rules for no other reason than that the shoe is on the other foot. There are two plausible ways our democratic society can go about selecting Supreme Court Justices. Under one approach, the party in power is able to place Justices on the Court who are in tune with its general philosophy about judging.

This is the one provided by the founders when they wrote the Constitution.

Because Justices tend to stick around much longer than parties are able to stay in power, this approach yields an ideologically diverse Court, but one which should (but right now probably doesn't) reflect about a quarter of a century's worth of public opinion. The other model is to make the selection of Justices a truly collaborative effort between the two parties, in some fashion. These days, this approach (if it could produce nine Justices) would yield a Court full of non-descript moderates and difference-splitters.

The former approach is the one we have always used. How well it has worked is subject to debate. But there's no reason to think that the latter approach would work better, especially since the Democrats never advocated it until they started losing elections semi-regularly, and the Republicans have never advocated it. In any event, the Republicans shouldn't embrace a rule change that so transparently is designed to deny them the fruits of electoral success.

Dionne is right about one thing -- the Democrats should focus critically on the judicial philosophy of Bush's nominee[s]. And nominees should answer questions about their philosophy to the extent that prior practice (e.g., the confirmation hearings of Ginsburg and Breyer) warrants. But Democrats should not investigate the private lives of nominees. For example, they should not investigate what films a nominee rents, as they did with Robert Bork. And Dionne is completely off base in suggesting that Democrats do this only because nominees don't reveal enough about their philosophy. First, that's no excuse; second, the Democrats slimed Bork even though everyone had comprehensive knowledge of his philosophy.

Democratic Senators should also vote against nominees whose philosophy they (as opposed to Nan Aron and Ralph Neas) find too extreme. But they should not deny any nominee an up-or-down vote, and Dionne makes no attempt at an argument that would justify doing so. Finally, if/when they embark on their filibuster, the "temporary" majority party should exercise its right to change the Senate rules and put an end to the obstruction.

Ed Whelan blogged The basic question Dionne ought to be asking, of course, is of a very different nature: Should five justices be free to invent “rights” that have no legitimate basis in the text or structure of the Constitution and to deprive 300 million Americans of their constitutional power to set policy on those invented rights?

The Left seeks to entrench its agenda in the guise of the “living Constitution.” It wants justices to make up rights that aren’t in the real Constitution and to ignore rights that are. So-called “conservative extremists,” by contrast, recognize that the Constitution leaves the vast bulk of important issues to be decided by American citizens through their representatives. And, although the Left often asserts that “conservative” justices are as “activist” as “liberals,” it cannot even allege instances of judicial imposition of substantively conservative results that are remotely comparable to the Court’s broad-ranging — and patently illegitimate — imposition of the Left’s agenda over the last several decades.

PoliPundit blogged So I guess we should all just forget about that election thingy. I’m sure Dionne would say the same thing if Kerry had won, and Democrats - rather than Republicans - had gained four seats in the US Senate in 2004. Right? Right?