Against Some More Ridiculous Errors...

This fine Sunday morning I awoke in Washington, DC and after the celebration of the sacred mysteries (Catholic Mass for those not in the fold) I set about to watch our nation's most influential folks gab about the nomination process. In a spirit of charity and hope (influenced by the Mass) but also out of a desire to see the truth vindicted (id.), I offer the following reflections in no particular order:

(1) Sen. Schumer is playing with fire. He wants to say two things simultaneously: that ideology is grounds for opposition, presumably to the point of filibuster; and that President Clinton nominated Ginsburg and Breyer after consultation with Orin Hatch which is why they sailed through. But Orin Hatch did not hold the first of the two propositions, at least not robustly. The Republicans have had their share of bad behavior on judicial nominations over the years, but when it has come to the Supreme Court they have held their fire. Can anyone seriously claim that Ginsburg does not run afoul of what a "conservative" wants in a judge at least to the degree that Luttig would run afoul of liberal hopes? But, to that point, the Senate still respected that Presidential elections matter, and that, character and competence established, the President's Supreme Court nominees should be affirmed. If the standard is not that a John Roberts, an Edith Jones or even a Janice Rogers Brown cannot qualify, that will not bode well for the future.

(2) Did anyone in the media or elsewhere note that replacing Byron White with Ruth Ginsburg shifted the balance of the Court? Was this inappropriate then? Would it be inappropriate now, therefore, to put up somebody with a different philosophy than Justice O'Connor? This is among the sillier arguments employed by self-styled progressives to pretend that they did not lose the last election.

(3) Did Walter Dellinger, distinguished Professor of Law at Duke and Solicitor General under President Clinton, miss the first year course in Constitutional law? This morning, on the George Stephanopolous program, he opined that he could see no reason why a nominee should be permitted to avoid questions about pending issues before the court. How about several reasons, beginning with the Separation of Powers: how would it not undermine the independence of the judiciary to insist upon particular views about actual cases likely to arise before a person could join the court? Let's also try Judicial ethics: Judges (like Justice Scalia in the Pledge case) must recuse themselves from hearing cases they are thought to have prejudged; the judicial code of ethics has for years required that judges refrain from commenting on matters likely to come before their courts. And all nominees of both parties have under that principle refused to answer such questions. So for Constitutional and ethical reasons, Mr. Dellinger, it would be wise not to abandon this practice.

(4) Sen. Specter did not learn much from his behavior in the episode that made "Bork" a transitive verb. This morning on the same This Week program, he suggested that originalists like Bork could be outed in hearings for their extreme views. As an example, he argued that under the original meaning of the Constitution you would have to segregate the Senate, whites on one side, minorities on the other. Now, that argument is so completely ridiculous I don't even think Ralph Neas would make it--but it comes instead from the Republican Chairman of the Senate Judiciary Committee. It's rather depressing to imagine that such things can be said. It truly is not possible that Specter believes what he said. Why did he say it? He's very hurt and angry that conservatives have not forgiven him for what he did to Bork. This comment by him suggests that conservatives are apparently correct not to have forgiven or forgotten, since he has not repented from the shameful canard that originalists are somehow opposed to civil rights, in favor of racism, and, when they get the chance, like to kick cats.

(5) There is very little hope to imagine that the media will cover this as anything other than just another political appointment, and will discuss only the results that nominees have voted for or would vote for. This is how the Senators will discuss it, this is how the activist groups will pitch it, and there is little hope that the journalists will not follow their lead.

(6) As depressing as all of the foregoing can be, tomorrow is July 4, and as such an occasion to reflect that we are passionate about this because we love the country, the Constitution, the freedoms we enjoy, and system that brought most of ancestors here yearning to breathe free. Happy Independence Day!