Tuesday, January 31, 2006

New rules for Supreme Court confirmation 

Alito was confirmed today, on something close to a party line vote. As Powerline points out, this partyline breakdown represents a substantial change in the rules governing the Senate's advise and consent role in the confirmation of judicial nominees. The "Ginsberg rule" is no more. The "Alito rule" is the new standard.

Under the Alito rule, Senators will vote against highly qualified nominee for no reason other than that they expect the nominee to rule contrary to their preference on major issues. Under the Alito rule, the president's party, in effect, must control the Senate in order for the president to have top-notch nominees of his choice confirmed. When the the president's party doesn't control the Senate, only compromise nominees acceptable to both parties can expect to be confirmed.

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

It remains to be seen whether the Republicans will have the stones (or chutzpah) to play by the same rules should a Democratic President have an opportunity to nominate someone to the court in, say, 2009. Certainly I don't expect the media to hold them to the same standard, and thus they can expect a loud outcry should they attempt to do so. Liberals have turned the thing on its head, with Eleanor Clift recently quoted as saying Ginsberg passed by such a wide margin because Clinton was a "uniter" and put forth a candidate with broad appeal, unlike "divider" George W. Bush (similar to the current nuanced distinctions being drawn by the New York Times between "whistle blowers" and "leakers"). It will likely be up to the next president to test these waters.


By Blogger TigerHawk, at Tue Jan 31, 01:04:00 PM:

The question is, will the Republicans be able to manage the blowback from the press when they vote against the next Democratic nominee on results-oriented grounds?  

By Blogger Charlottesvillain, at Tue Jan 31, 01:10:00 PM:

That's sorta what I meant by "stones."  

By Blogger DAG, at Tue Jan 31, 01:24:00 PM:


Satarical look at Alito  

By Blogger Cardinalpark, at Tue Jan 31, 02:58:00 PM:

I think it will boil down ultimately to whether a candidate has emiment qualifications and a sterling reputation, regardless of their stance on hot button issues of the moment.

My recollection is that Bork got hung on his embarrassing little porn rental problem. There was another Clinton nominee who got chucked out due to a pot smoking habit.

It's not like if you did a re-vote for Ginsberg or Kennedy, they wouldn't be confirmed (unless some skeletons came flying forth from the closet). Of course we know that allegations were made against Clarence Thomas by Anita Hill that ultimately were not factually substantiated and Thomas hung in there, with the "hgih tech lynching" defense.

It is the combination of "political stance" with proven "lapses" that seems to doom a candidate -- mostly because their natural support base dries up, not because the opposition does them in.

If Republicans feel, as these Democrats do, that they need to vote against an obvious winner (they too can count votes after all), it is because they will be pandering to their base. Or maybe beause they want to send a PR message about "dividing" versus "uniting" or some similar bit of idiocy.

Personally I wish they would vote their conscience (if it's possible that any politicians actually have one), because it's so difficult to decipher any meaning in any of these inconsequential votes.  

By Blogger Lanky_Bastard, at Tue Jan 31, 03:11:00 PM:

What if we have only compromise nominees acceptable to both parties? What if neither party can use the courts to push through an ideological agenda?

Sounds like a winner to me.  

By Blogger Charlottesvillain, at Tue Jan 31, 03:26:00 PM:

Lankey, you could be right, although no one who as ever worked with Alito, liberal or conservative, believes he has an "ideological agenda." I guess the powerline point may be that the compromise candidates may in fact be a good outcome to this process, but at the expense of highly qualified thinkers that one side finds objectionable for one reason or another. Reversion to the mean isn't necessarily a good policy for assembling a Supreme Court. But maybe it will be good enough.  

By Anonymous Jim - PRS, at Tue Jan 31, 03:39:00 PM:

Eleanor Clift's explanation of the basis for Justice Ginsberg's confirmation is beyond fanciful. I would, however, expect no less from Ms. Clift.  

By Blogger cakreiz, at Tue Jan 31, 05:55:00 PM:

CP- point of clarification- it was candidate Thomas that was embarrassed by a porn rental, not Bork. Bork had a bad looking beard and an arrogant personality- not a good combo.  

By Blogger honestpartisan, at Tue Jan 31, 06:53:00 PM:

Ginsburg was confirmed easily because Clinton asked Orrin Hatch for suggestions on who could get confirmed, and he suggested her. Bush didn't do that with Alito, whose decisions demonstrate party-line conservatism (in contrast, Ginsburg had been critical of the reasoning behind Roe v. Wade).

Not only did Republicans have the "stones" to oppose Clinton's judicial nominees, but they did so to a greater rate then ever before, using the standard they have set -- whether a Circuit Court nominee gets an "up or down" vote.

I don't see why it's OK to nominate someone because of ideology but not to vote against confirmation of someone because of his ideology. Again, not historically unprecedented at all -- a combination of Dixiecrats and Republicans blocked LBJ's nomination of Abe Fortas to the Supreme Court in the '60s because he was considered too liberal.

Finally, I don't see why nominating a judge who's not on an ideological agenda means you have to sacrifice quality.  

By Blogger Charlottesvillain, at Tue Jan 31, 07:25:00 PM:

Again, I challenge the premise. I never used the term idealogical and neither did Powerline. That has become a left-wing straw man for anyone who won't guarantee not to turn over RvW.  

By Blogger Cardinalpark, at Wed Feb 01, 08:19:00 AM:

Cakreiz - I beg to differ. while it was never definitely proven that Bork was a porn movie aficionado, his video rental history was leaked, with the clear implication that he was a porn renter. In fact, there was a law passed in 1988 in response to this to protect the private of people's video rentals.

So he was on shaky political ground, was not an attractive "camera candidate" and then they started making up personal character stuff.

Now with Thomas, they went off with the Anita Hill allegations.  

By Blogger cakreiz, at Wed Feb 01, 11:17:00 AM:

I'll do some research (still think I'm right) but the juxtaposition of Bork and porn is most sobering. It also sheds a new perspective on his book, "The Slouching of America".  

By Blogger cakreiz, at Wed Feb 01, 11:21:00 AM:

According to wikipedia, I'm wrong-

"During debate over his nomination, Bork's video rental history was leaked to the press, which led to the enactment of the 1988 Video Privacy Protection Act. His video rental history was unremarkable, and included such harmless titles as 'A Day at the Races', 'Ruthless People' and 'The Man Who Knew Too Much'."

Perhaps I was diverted by te famed "Long Dong Silver" reference in Thomas' hearings.


By Blogger Cardinalpark, at Wed Feb 01, 02:14:00 PM:

No problem. The vivid reference I recall from the Thomas hearings was the "pubic hair on the Coke can" comment. Hill accused Thomas of having made the observation in salacious fashion while working together at EEOC -- among other observations.

It is really extraordinary that Thomas survived. Those hearings were unbelieveable, and Thomas's empassioned defense and "high tech lynching" comments were icnredible theater. Compared to the recent hearings, these were total yawnfests.  

By Blogger cakreiz, at Wed Feb 01, 04:57:00 PM:

The Roberts and Alito hearings were yawners- well said. The GOP went to school after Bork & Thomas-now, nondescript is now a must. And Harriet Miers is already a trivia question.  

By Blogger Charlottesvillain, at Wed Feb 01, 05:35:00 PM:

My most vivid memory of the hearings was the SNL parody that went on right after the hearings closed for the day. It was a priceless piece of work that was so close to the real Judiciary Committee that it became hard to distinguish reality from farce. Come to think of it, I had similar feelings watching this latest round of hearings.

I think televised hearings are almost always a good thing. It is good for the democracy for the American public can see our esteemed representatives in action.  

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