Baseball Crank
Covering the Front and Back Pages of the Newspaper
May 11, 2009
POLITICS/LAW: How Republicans Should Oppose Obama's Supreme Court Nominee

At this writing, we do not know who President Obama will nominate to replace David Souter on the Supreme Court, and so it's impossible to anticipate precisely how much Republican opposition his pick will meet with, or for that matter whether any Democrats will be opposed.

Nonetheless, of this much we can be sure, from Obama's own history and prior statements as well as that of his party: Obama is highly likely to select a nominee who will do a terrible job as a Supreme Court Justice, in terms of (1) following the reasoning process that we Republicans and conservatives believe is the legitimate and appropriate way for a Justice to decide cases and (2) reaching what Republicans/conservatives would regard as the correct results in interpretiting the Constitution and federal statutes.

So, the President is likely to do something Republicans legitimately and seriously disagree with, and which will do lasting damage to the nation. How then to respond? Here, sight unseen of the nominee, I can offer two main suggestions.

I. Get To The Merits

Republicans in recent battles over judicial nominees, especially those conducted while the GOP held a strong majority in the Senate, have had an unfortunate tendency to fall back on proceduralism. That means making arguments primarily along the lines that if a candidate is "qualified," he or she should be given a floor vote by the Senate, without getting into matters of judicial philosophy or ideology.

This is perhaps the best tactical approach if you control the White House and need to apply pressure to wavering Senators, given that there's a fairly broad bipartisan popular consensus that is at least vaguely in favor of deferring to the President in the judicial selection and confirmation process. But as a matter of long-term strategy, it's terribly short-sighted.

Sure, arguments about merit, like this Pejman essay, are important. Lack of qualifications was ultimately what turned me and many others who had no particular ideological reason to oppose her against Harriet Miers. But qualifications are not the core issue. Let's say I was starting a team that aimed to win a championship, and I asked you whether LeBron James was more qualified than Albert Pujols. You could not answer that question without first asking me whether I'm playing basketball or baseball - because the two men make their living trying to accomplish completely different things.

The simple fact is that Republicans have a fundamentally different view of what judges are trying to accomplish. And so, ipso facto, a judge who is highly intelligent and experienced may be "qualified" in the abstract, but is guaranteed to perform poorly if he or she is not even trying to do the things those of us on the Right believe are the essentials of the job.

Obama has been known to say things like this in describing what a Justice should be like:

We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be poor, or African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting my judges.

Now, empathy is not a bad thing in the abstract (although a little empathy for the unborn, the soldier, the cop, the Christian, the victim of crime or terrorism among others, might offer some balance to that picture), but in terms of putting it as the centerpiece of a judicial philosophy...well, imagine how liberals would feel if George W. Bush had said the most important thing in a judge was being patriotic or a good Christian. Just because something is an important value for people or government officials generally doesn't mean it's the job of the judiciary.

Republicans disagree fundamentally with the view that "empathy" is a Justice's primary job. Instead, we believe that the job of judges is, at its core, to recognize that all legitimate exercises of judicial power derive from the consent of the governed. That job is carried out by figuring out what exactly the people - acting directly or through their elected representatives - agreed to when they enacted the Constitution and federal statutes. Making that determination doesn't decide 100% of the issues presented to the Supreme Court, of course, but it's the bedrock foundation without which the Court's exercise of power is fundamentally illegitimate, and the Court must decide that question, and determine if it disposes of all the issues at hand in a case, before it proceeds to any other question. But Obama and his allies simply refuse to be bound by the need to limit themselves to such constraints on their power.

The Republican position has a lot of popular appeal, much more than the competing view of judicial imperialism (that the judiciary should stop the elected branches from doing things that violate the judges' moral and public policy views) and, worse yet, transnational progressivism (i.e., the notion that American law should conform and ultimately subject itself to European/Canadian-derived "international" law without regard to the consent of the American people). Republicans have a winning philosophical argument on the merits, one that goes to the very core of our continuing status as a democracy; we should not fear to make it.

Perhaps the best evidence of the enduring popularity of judicial conservatism is the other side's perennial and often-desperate attempts to blur this distinction and appropriate its language. Justice Stevens has been known to claim that he is a conservative, which is the highest tribute that can be paid to judicial conservatives: a man who is closing in on the status of oldest and longest-serving Justice prefers the conservative label to one that would distinguish his jurisprudence from that of his critics. For a recent example, Gordon Silverstein at the New Republic peddles the myth of Justice Souter as a "real" conservative, which he frames as adherence to judicial precedent but by which he really means one who never makes liberals unhappy. Orin Kerr explodes that myth. A sample:

[T]he two Justices on the current Court who vote most frequently with each other are often Justice Souter and Justice Ginsburg. Looking at the current Supreme Court Term, for example, the Souter/Ginsburg pairing is the most common: They have fully agreed with each other 88% of the time. The next closest pairings are Scalia/Roberts at 83%, Roberts/Alito at 81%, and Thomas/Scalia at 79%.

This is even before you consider the numerous occasions on which Justice Souter has not adhered to precedent, ranging from recent reversals on the 8th Amdment to Lawrence v. Texas, just to pick a few of the more sensational examples.

Putting the argue-the-merits approach into practice, of course, doesn't mean ignoring short-term tactics entirely. Certainly, we should want to win the battle ahead. But tactics are not everything, and the odds against victory are prohibitive: even if Obama picks a poor nominee who generates significant Democratic opposition, the fact remains that he has close to 60 votes in the Senate; he'll get some choice of his eventually, whether it's his first choice or not.

Thinking strategically, therefore, Republicans and conservatives should prioritize, not immediate tactical advantage, but long-term victory, by focusing on educating the public about how Obama's nominee departs from the proper and legitimate interpretation of the law and how the visions of the two sides differ on this issue. Elections have consequences - and the loser of the election should not hesitate to point out what those are.

II. Be Willing To Apply The Obama Standard

Many of us on the Right have long argued, on principle, against the filibustering of judges. Personally, while I'm comfortable with using the filibuster to delay floor votes on a nominee to ensure the gathering and dissemination of sufficient information about the nominee, I regard it as an important practice for the Senate, as a matter of courtesy and tradition, to give the President an up-or-down vote on all his nominees.

But let's face it: we had a long national argument on that point, and we lost. The other side didn't adhere to that view of deference. In the 2008 election, we nominated a candidate who voted in favor of every SCOTUS nominee during his career, ranging from Bork to Ginsburg; the Democrats nominated a man who participated in numerous filibusters of appellate nominees, voted to filibuster Justice Alito, and voted on the merits against the two SCOTUS nominees (Roberts and Alito) to come to a vote during his brief tenure as a Senator. Orrin Hatch led the way in convincing Senate Republicans to give a fair vote and deference to the selection of Justices Ginsburg and Breyer, and left-wingers are still using that against Republicans. Republicans should make explicit that they will give Obama's nominees only so much deference as he himself was willing to give.

Jeff Sessions, himself at one time a victim of Democratic obstruction in the Senate back when he was nominated for a federal appellate judgeship, has signalled that the GOP is not necessarily gearing up for a filibuster. I don't have a problem with this statement. First of all, it's traditional to at least profess a willingness to keep your options open. Second, as Karl Rove points out, Senate rules currently require that any nominee win at least one vote of the minority party on the Judiciary Committee, and with the loss of Arlen Specter from the minority, the pickings could be slim even without a filibuster. And third, there's a lot on the table in the Senate; if Republicans can accomplish their mission of educating the public, and if they are prepared to vote against the nominee on the merits, there may not be a point in a fruitless filibuster vote.

All that said, Republicans shouldn't rule out the filibuster. There comes a time when unilaterally standing on a principle the other side doesn't respect, out of courtesy and tradition, is just self-defeating. And in the long run - maybe not now, given how close the Democrats are to 60 votes, but sooner or later - Republican resistance could decide the Democrats on changing the rules themselves to make it easier to get judges confirmed. As with other efforts to rely on brute force, it is better to compel this to be done openly, in full view of the public. And new rules - unlike courtesy or custom - are something Republicans can use down the road to re-establish the balance they wanted all along.

Posted by Baseball Crank at 2:45 PM | Law 2009-14 • | Politics 2009 | Comments (25) | TrackBack (0)

Classic conservative hypocrisy. The "dont filibuster give an up and down vote" applies only when your guy is in office. Just like the current howling over the use of filibuster-avoiding budget reconciliation strategies on healthcare rings hollow considering that the GOP invented the tactic to pass Reagan's tax cuts.

Posted by: seth soothsayer at May 11, 2009 2:52 PM

Like I said: we had that argument, and we lost it. Democrats don't respect the principle. Do you believe Republicans should respect it unilaterally?

Posted by: Crank at May 11, 2009 2:55 PM

You're not acting out of principle, but out of result orientation and you know it. Stop acting like you have the monopoly on the high road, that Democrats never act out of principle and the Republicans usually or always do. That civics for 1st graders not the real world.

Posted by: seth soothsayer at May 11, 2009 3:23 PM

"Like I said: we had that argument, and we lost it. Democrats don't respect the principle. Do you believe Republicans should respect it unilaterally"

Arlen Spector basically agrees with you, and in so doing demolishes the GOP attacks on him. He can't win in the primary so should he stay a GOP "on principle"?

Posted by: seth soothsayer at May 11, 2009 3:25 PM

seth, you think it's wonderful when Obama does it, and not OK for Republicans...don't talk to me about principle.

Eliminating the filibuster entirely for judges would be a good thing. That's my ideal, and I'd still love to see it done by rule, because rules are binding on both sides. You can't tie your hands to a principle if you have no means to compel the other side to accept it, which Democrats have proven they won't. As we saw with the Independent Counsel statute, Democrats can only be compelled to respect elementary separation of powers principles when they are made to feel the consequences themselves.

Posted by: Crank at May 11, 2009 3:31 PM

Conservatives should focus on Barry Hussein Soweto Obama's "empathy" standard for justices. They should focus on any judicial nominee's fidelity to the law over personal ideology.

I've heard some Republicans who say that calling for a filibuster or any type of parliamentary block would be "hypocritical" because Conservatives were angry when the Dims did that to Bush. There is a huge difference. Rather, than taking a sentence out of context and branding every originalist thinker a racist, sexist, homophobe or all-purpose hater, Conservatives would be showing that the nominees have no intention to uphold the oath they will take. These nominees take an oath to uphold the Constitution of the United States. If they have already expressed their reluctance to adhere to the law of the land, they should be blocked.

Posted by: Edgycater at May 11, 2009 6:09 PM

Don't filibuster-based on facts, demonize 24/7 whatever legislator posing as a Judge they want to put up there. Explain to the people all the damage done to the Constitution and their rights by unelected lefty judges over the last 50 years. I would love for the Republicans to give them what they did to Bork, Ginsberg, Alito and Roberts-to name a few. Punch them right in the mouth and keep punching to they are spitting out chicklets. Maybe they will be scared and the Dems could get a Souter of their own

Posted by: dch at May 11, 2009 7:07 PM

I'm not looking forward to any of this. I wish he had waited another year to retire so we can focus on the economy.

Posted by: MVH at May 11, 2009 7:30 PM

Crank, I guess in your mind, this passes for logic.

1. An Obama appointee won't follow GOP-approved decisionmaking processes.

2. An Obama appointee won't reach results with which you agree.

3. Therefore, President Obama is likely to do "lasting damage to the nation."

What a simpleton. Almost Bush-level stupidity.

Posted by: Magrooder at May 11, 2009 8:28 PM

Yes, I admit, applying the Constitution as the people intended it to be read when they agreed to it is "GOP-approved decisionmaking processes." I am not ashamed to stand for that principle.

Posted by: Crank at May 11, 2009 10:44 PM

I like this post a lot. I'd give it a new title: Crank in the Obama Era: The Devolution of a Principled Conservative

Posted by: Jimmy at May 12, 2009 1:02 AM

Turnabout is fair play, isn't it?

"Yes, I admit, applying the Constitution as the people intended it to be read when they agreed to it is "GOP-approved decisionmaking processes." I am not ashamed to stand for that principle."
Well said.

Posted by: 94by50 at May 12, 2009 1:12 AM

Dear BC,

You are right that any appointment by BO should be scruitinized carefully but you have put forth the wrong reason. It has nothing to do with Conservative/Republican ideology and everything to do with having a justice of the SC able to discern the intent of the Constitution and the founding fathers.

The President's intent to appoint someone who has 'empathy' is irrelevant. Justice and the Law have no empathy. That is the preserve of mercy and in the implementation of the law, empathy has no place.

While this may sound intolerant and/or harsh, it is the only way that a society based on the rule of law can survive.

Posted by: Michael in NZ at May 12, 2009 2:04 AM

"seth, you think it's wonderful when Obama does it, and not OK for Republicans...don't talk to me about principle."

Game, set, match.

Crank, I suggest that you hold a contest to see if one of your liberal trolls is capable of making an intelligent comment. If they ever manage to do so, give them hearty congratulations and make a separate post highlighting it.

Posted by: stan at May 12, 2009 10:11 AM


You act as if the "principles" you espouse are the received word of god with which no one could diagree; e.g., "applying the Constitution as the people intended it to be read when they agreed to it." That is certainly one legitimate theory for how the Constitution is to be interpreted. Supreme Court decsions tracing almost to the beginning of the union contain ample examples of difering views.

But, since you are all-knowing and all-seeing, those opposing views "will do lasting damage to the nation." Weak, really weak.

Posted by: Magrooder at May 12, 2009 1:55 PM

Just when you think the pool of narcissism here can't get any more shallow they find a way to take a little bit more out of the puddle.

Posted by: jim at May 12, 2009 3:45 PM

Magrooder - I'm pretty flexible and moderate-to-liberal in a lot of my views, but I still have a preference for judges who will rule on either what the law actually says or what it was intended to say - not what it ought to say. That's the province of Congress, and ought to stay that way. Congress is good at thwarting utopianism, which is how the founders wisely intended it to be.

Posted by: Jerry at May 12, 2009 11:03 PM


I totally agree with respect to statutes and regulations isseud by executive agencies; courts should apply the language as written, looking for "intent," etc. only where the statute is ambiguous and should defer to the executive agency issuing the regulations.

The Constitution is another matter, as it forms the boundaries for the power of the various levels of government to act. As Justice Brennan (I think) once remarked, the Constitution is a living document and it must adapt with the changing circumstances of the world. Moreover, the "original intent" theorists can't really know what the original intent was; all they can know is what they now think it was. How is that any different?

Posted by: Magrooder at May 13, 2009 4:05 PM

Originalism - like statutory interpretation - is not so much about the intent of the drafter as it is about how the text was commonly understood at the time it was ratified. That's what gives judicial overruling of democratic enactments legitimacy: not the fact that someone wrote the words of the Constitution down, but that they were ratified by the people.

The meaning of the Constitution doesn't change over time. Its application obviously has to be adjusted to some extent, just as its explicit terms need to be applied in different factual scenarios, but always, always, the courts must be mindful that the Constitution through Article V explicitly gave the people the power to amend the document to bring it into line with changing times, changing ideas and changing realities - and the courts go beyond their legitimate power when they take the role of changing the meaning unto themselves. And we know from long experience that proponents of a 'living constitution' persistently disregard those limitations on their own power, not occasionally but routinely as a matter of practice.

Posted by: Crank at May 13, 2009 4:31 PM


There is no serious argument that the Supreme Court has over the course of history "found" rights and provisions that one cannot discern from the language; Roe v. Wade being the most notorious.

There is no serious argument either that the "originalists" on the Court do not consistently adhere to that judical philosophy, but rather "interpret" the words to achieve a desired result; Bush v. Gore being the most notorious example.

The Constitution also provides for impeachment of Supreme Court justices and if any justice goes beyond the role the political branches deem appropriate, they have that avenue of redress.

Posted by: Magrooder at May 13, 2009 9:08 PM

The concurring opinion in Bush v Gore, which was joined by Rehnquist, Scalia, and Thomas, is entirely consistent with an originalist reading of Article II.

The fact that the Court has made terrible mistakes in the past like Roe, Lochner and Dred Scott is not an excuse for carrying such errors forward into the future.

Posted by: Crank at May 13, 2009 9:44 PM

I guess you were not a math major. Rehnquist, Scalia, and Thomas. I think that is 6-3

Posted by: Magrooder at May 14, 2009 1:32 PM

I have never claimed that Justices O'Connor or Kennedy were originalists. My point is, those three Justices joined an opinion giving an originalist basis for the Court's disposition of the case.

I don't pretend to have done the digging to know whether one could justify the per curiam opinion itself on originalist grounds; I doubt it. That said, it was firmly within the ambit Court's rational-basis jurisprudence to find that the Florida Supreme Court's creation of a post hoc non-statutory remedy after the election, and rejection of the election day count, the machine recount, the trial court findings and the Legislature's statutory delegation of authority to the Secretary of State, was lacking any rational basis as well as being deserving of heightened scrutiny by virtue of being a remedy created by a court rather than a neutral rule set out in advance by the Legislature.

Posted by: Crank at May 14, 2009 1:44 PM

Rehnquist, Scalia, and Thomas consistently have rejected the states rights bizzaro-world.

Posted by: Berto at May 14, 2009 2:52 PM

Article II provides an express, textual allocation of rights within state government. Go read the concurrence.

Posted by: Crank at May 14, 2009 3:13 PM
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