Tuesday, May 18, 2010

Senatorial Deference to Judicial Nominations

Byron York has an interesting column on the deliberation within Republican circles about how to respond to Elena Kagan’s nomination to the Supreme Court (my emphasis):

“There's an intense debate going on behind the scenes among Republicans involved in the Elena Kagan Supreme Court nomination. It's about whether the GOP should to try to stop Kagan, because that's what Democrats would do in the same situation, or whether Republicans should concede that Kagan is qualified and vote to confirm her because the president has the right to expect the Senate to approve qualified nominees.”
On one side you have high-minded Republican lawyers like Kenneth Starr and Miguel Estrada upholding the traditional view that, so long as a President nominates someone with a respectable legal resume, Senators should defer to his choice, without rendering their own judgment about the nominee’s judicial philosophy or political ideology. That used to be the orthodox view in both parties. Here, for example, was how in the 1960s Ted Kennedy urged the Senate to confirm Thurgood Marshall in the face of opposition from senate segregationists:
“[I]n advising and consenting . . . we are challenged to ascertain the qualifications and the training and the experience and the judgment of a nominee. . . . [I]t is not our responsibility to test out the particular philosophy, whether we agree or disagree, but his own good judgment, and being assured of this good judgment, that we have the responsibility to indicate our approval or, if we are not satisfied, our disapproval.”
It's been a long time, however, since Democrats said such things with any conviction. As York explains, something like Charles Schumer’s position now prevails in Democratic circles:
“[S]ome leading Democrats have for years worked to establish a new, openly ideological standard for judicial confirmations. In 2001, Sen. Charles Schumer, one of Kagan's top supporters, held a hearing titled, ‘Should Ideology Matter?’ His position was (and is) that senators should reject qualified nominees simply because of their views on issues. Schumer would like to put an end to the idea that the Senate owes the president confirmation of qualified nominees.”
The Starr-Estrada view owes whatever plausibility it has to a familiar moral reflex. Let’s assume for the sake of argument that the judicial confirmation system worked better than it works now when it was general practice of Senators from both parties to defer to presidential judicial nominations. On that assumption, you might dust off the Golden Rule and think that Senators who recognize the superiority of the old system have an obligation to do unto their political opponents as they’d prefer their opponents to do unto them. But that would mean deferring to the judicial nominations of presidents on the other side, even when you reasonably expect that your deference won’t be reciprocated when the electoral tables turn.

Can citizens really be required to be chumps? Surely not. We all have an interest in having courts capable of issuing authoritative decisions even though we can’t agree who should sit on them and what they should decide. So the best we can do is agree on, and abide by, a judicial selection system that gives each side a fair shot of getting the judges it wants and then live with whatever the duly selected judges decide.

A process where both sides defer to the nominations of the other party’s president could be fair. So could a process in which neither side defers. But a system in which one side, but not the other, recognizes an obligation to defer to the President can’t be fair. The fact that a system of reciprocal deference is better than a system of reciprocal non-deference is beside the point. So long as one side won’t play by it’s rules, the better system's not on the table.

That doesn't mean, however, that Republicans are free to filibuster a Supreme Court nominee whenever the spirit moves them.  That would be enough of a change in the prevailing rules--albeit a change invited by Democrats when they took the unprecedented step of filibustering Circuit Court nominations--to require Republicans to think twice about whether it's a good idea to make judicial filibusters a regular practice.  It's one things to offer yourself up for exploitation by clinging to the norms of a superseded system, another to make the system we have worse than it already is.

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