Bench Memos

NRO’s home for judicial news and analysis.

Ruth Marcus’s Partisan Concern for the Judicial-Confirmation Process?


Back when the confirmation battles over John Roberts and Samuel Alito were taking place, the Washington Post’s Ruth Marcus wasn’t decrying the failure of Democratic senators to accord deference to President Bush’s nominations.  Nor, so far as I can tell, did she object to the unprecedented partisan filibuster effort that then-Senator Barack Obama and others launched against the Alito nomination.  Rather, she was disputing the proposition that Democrats owed Alito the same deference that Republicans gave Ruth Bader Ginsburg.  (See my own take on Ginsburg vs. Alito.)  And she was complaining about the “inability of the confirmation process, as currently constructed, to elicit much beyond [what she called Roberts’s and Alito’s] formulaic incantations about the rule of law.”

Now, suddenly, Marcus is lamenting that the “Supreme Court confirmation process has been degraded into a partisan political fight.”  A few comments:

1.  Marcus can’t define the level of deference that she thinks is proper, but her approach would apparently include an “outside the mainstream” standard.  Who defines the mainstream?  Apparently, the liberal legal academy.  That’s evidently why Marcus contends that Robert Bork’s “judicial philosophy was demonstrably outside the mainstream,” but that Elena Kagan’s wasn’t.

2.  The battle that Republicans waged over the Kagan nomination was over whether she demonstrated a sound understanding of the judicial role.  That focus—which of course implicates sharply contending conceptions of the judicial role—is an entirely proper one, and it’s a mistake to reduce it to a “partisan political fight.”

3.  Marcus professes a lack of interest in “who started” the deterioration of the confirmation process, even as she misstates the usual Republican position on that question.  (Most conservatives, I think, would trace the deterioration back to the Bork battle in 1987, not to Democrats’ “filibusters of lower-court nominees” in the Bush 43 years.)  While it may seem high-minded (but may simply be politically convenient) not to have interest in this question, it’s difficult to see how anyone could propose a solution to the deterioration problem without understanding the sources of the problem.  (My own analysis of this matter, in the form of my Weekly Standard review of Benjamin Wittes’s Confirmation Wars, is here.)

4.  Marcus refuses to rule out the filibustering of judicial nominees, saying only that the “tactic should be reserved for extraordinary circumstances.”  That’s a meaningless standard.  Marcus doesn’t even reveal whether she thinks the Senate Democrats’ effort to filibuster the Alito nomination was justified.  Indeed, she doesn’t even note the filibuster effort.

By the way, my own consistent opposition to the filibustering of judicial nominees has been premised in part on the (perhaps naïve) hope that the Democrats’ efforts against Alito and lower-court Bush nominees were an ugly aberration that Democrats would agree shouldn’t be repeated.  But if folks on the Left are going to continue to regard the filibuster as a legitimate option, I may well have to reconsider.

5.  In a revisionism increasingly common on the Left, Marcus presents the 22 votes against Roberts as of a kind with the three votes against Ginsburg and the nine votes against Stephen Breyer—all, in her words, “quaint artifacts of a more genteel era.”  But there was nothing “genteel” about the fierce Democratic opposition to Roberts.  Further, as Wittes writes in his Confirmation Wars (pp. 5-6):

[M]any Democrats swung in Roberts’s favor only at the end, in the wake of the surprise decision by the Judiciary Committee’s ranking minority member, Patrick Leahy, to support him.  Roberts could easily have received many fewer Democratic votes.

Leahy’s last-minute support for Roberts, which followed his vehement attacks on Roberts, was entirely tactical:  he thought that it would improve his position to wage battle against the next nominee.  In short, the Roberts confirmation process was not remotely like Ginsburg’s or Breyer’s.


Subscribe to National Review